Rodarte v. Orange County Fire Authority

Opinion

RYLAARSDAM, Acting P. J. Plaintiff Michael Rodarte sought a writ of mandate directing his employer defendant Orange County Fire Authority (OCFA) to pay his salary retroactively while an application for disability retirement was pending with the Orange County Employee’s Retirement System (OCERS). He also sought damages for deprivation of his alleged right to continued compensation without due process of law (42 U.S.C. § 1983) and breach of duty under state law. Plaintiff appeals from an order sustaining defendant’s demurrer. We affirm.

Facts

Plaintiff was a firefighter employed by defendant since its inception in 1994. Within a few months of his employment he suffered a back injury while representing defendant in a sporting event. For several months plaintiff took medical leave and depleted his accrued sick time. Over a year later, he obtained a work release from his personal physician but was denied one from an OCFA physician. The OCFA physician instructed plaintiff to continue his physical therapy. One month thereafter plaintiff’s personal physician again released him to resume work. But he was again denied release by the OCFA physician, and was ordered to enroll in a “work hardening” program and complete further training at the fire academy. The OCFA physician also prescribed psychological treatment for plaintiff’s depression.

The following year, the OCFA physician again denied plaintiff a work release based on his performance on an agility test and ordered further academy training. Plaintiff injured his knee during training and underwent surgery. Two months later plaintiffs physician released him to work. Once again the OCFA physician denied plaintiff a work release. A month thereafter, plaintiff was examined by two new OCFA physicians and finally obtained a work release.

Almost immediately after returning to work, plaintiff became ill and took personal leave. Thereafter defendant took plaintiff off active duty. In October 1998, defendant notified plaintiff it would apply for disability retirement [22]on his behalf. The next month plaintiff filed his own application for disability retirement. In January 2000, OCERS granted plaintiff disability retirement effective November 1998.

In his petition for writ of mandate and second amended complaint, plaintiff alleged defendant was obligated to keep him “on [the] payroll during the pendency of the OCERS disability retirement application process,” and that failure to do so violated Government Code section 31721 (all further statutory references are to this code). He also alleged that failure to continue paying his salary constituted a deprivation of a property interest without due process of law and a breach of duty under the County Employees Retirement Law of 1937 (CERL; § 31450 et seq.). Defendant demurred to the petition/complaint, contending CERL does not provide for continued entitlement to salary during the disability retirement application process and as such does not create a vested property right. The court concluded CERL did not require payment of salary “once [plaintiff] used up his vacation and sick leave and while the application for disability retirement was pending and plaintiff wasn’t working,” and sustained defendant’s demurrer without leave to amend.