Riverside Sheriffs' Assn. v. County of Riverside CA4/2

• Court: California Court of Appeal
• Decided: April 23, 2015
• Docket: E057647
• Status: Unpublished

Opinion

Filed 4/23/15 Riverside Sheriffs’ Assn. v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

RIVERSIDE SHERIFFS’ ASSOCIATION et al., E057647 Plaintiffs and Appellants, (Super.Ct.No. RIC1116174) v. OPINION COUNTY OF RIVERSIDE et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.

Affirmed.

Hayes & Cunningham, Dennis J. Hayes, Raquel A. Ortega and Gena B. Burns for

Plaintiffs and Appellants.

The Zappia Law Firm, Edward P. Zappia and Anna Zappia for Defendants and

Appellants.

1 I

INTRODUCTION

This is the second appeal in this employment termination matter. In the first

appeal, brought by plaintiffs and appellants Leisha Fauth and the Riverside Sheriffs’

Association (collectively, plaintiffs), this court held Fauth was entitled to an

administrative appeal hearing on her employment termination under a memorandum of

understanding (MOU) between Riverside County and Riverside Sheriff’s Association

(RSA). (Riverside Sheriffs’ Ass’n. v. County of Riverside (2009) 173 Cal.App.4th 1410,

1414 (Fauth I).) After remand, Fauth received a MOU appeal hearing, with the arbitrator

issuing an opinion and award, finding Fauth was terminated for cause, and awarding

Fauth back pay. Plaintiffs filed a petition for writ relief, objecting to the arbitration

finding Fauth was terminated for cause.

Plaintiffs appeal the trial court’s order denying in part plaintiffs’ petition for a writ

of mandate. Plaintiffs contend the arbitrator erred in finding defendants and appellants

Riverside County and its board of supervisors, district attorney, and interim county

executive officer (collectively, the County) terminated Fauth for just cause. Plaintiffs

argue the County wrongfully terminated Fauth’s employment because she was disabled,

when the County was required to apply for disability retirement for Fauth under

Government Code section 21153.1

1 Unless otherwise noted, all statutory references are to the Government Code.

2 We conclude the arbitrator did not err in finding Fauth was terminated for just

cause, since Fauth’s appeal of involuntary disability retirement remained pending in a

separate, mutually exclusive proceeding under California Public Employees’ Retirement

System (PERS) law. The arbitrator therefore was not required to find under section

21153 that the County wrongfully terminated Fauth, when there was cause to terminate

Fauth because she could not perform her job responsibilities.

The County cross-appeals the trial court order denying its trial court cross-petition

for writ of administrative mandamus, challenging the order awarding Fauth back pay.

The County contends in its cross-appeal the arbitrator exceeded his authority in

finding the County violated Fauth’s pretermination due process rights, because in

Fauth I, this court affirmed the trial court’s ruling denying as moot the third cause of

action for pretermination writ relief. The County also argues Fauth’s involuntary

disability retirement is final, and the County did not violate Fauth’s due process rights

when it terminated her. In addition, the County argues Fauth is not entitled to back pay

and, even if she is entitled to it, the trial court erred in extending back pay until the date

of the arbitrator’s decision on September 24, 2010. Furthermore, the County argues

Fauth failed to mitigate her damages and the back pay award is excessive and illegal.

We reject the County’s cross-appeal contentions and conclude the arbitrator did

not exceed his authority in awarding Fauth back pay for the County’s violation of her due

process rights under Article XII of the MOU. We further conclude there was substantial

evidence establishing that Fauth adequately mitigated her damages, and the trial court

appropriately extended back pay to the date of the arbitrator’s decision on September 24,

3 2010, under Barber v. State Personnel Board (1976) 18 Cal.3d 395, 403-404 (Barber).

The judgment is affirmed.

II

FACTS AND PROCEDURAL BACKGROUND

Fauth began working for the Riverside County District Attorney’s Office as a

senior district attorney investigator in 1995. From 2000 to 2002, Fauth was disciplined

and received poor job evaluations on a number of occasions. From 2002 to 2006, Fauth’s

job performance improved and she received approximately six commendations. In

March 2006, she was promoted to senior investigator II, which is a sworn officer position

requiring Fauth to carry a gun and pass a psychological fitness exam.

In May 2006, Fauth was investigated by her employer for neglecting her job duties

and incompetence. She was repeatedly absent without notice and ignored scheduled

investigations, forcing the County to release witnesses and pay interpreters while they

waited for Fauth, who never showed up.

On June 2, 2006, Fauth’s husband, Ronald Fauth, called Fauth’s supervisor, Clay

Hodson, Riverside County Chief of Investigations, and left a recorded telephone

message. After Hodson told Fauth he had received the message, Fauth handed Hodson a

19-page letter dated June 3, 2006, from Fauth’s husband. She also handed a copy of the

letter to the County human resources (HR) director, Ron Komers. In addition, the letter

was sent to CNN and Press Enterprise. The rambling letter discussed the Fauths’ marital

history, alleged that Fauth was subjected to sexual harassment, and accused County

employees of engaging in inappropriate conduct at work.

4 In response to Mr. Fauth’s voice-mail message and letter, and Fauth’s personal

delivery of the letter, Hodson requested a third-party clinical and forensic psychologist,

Dr. Victoria Havassy, to review and evaluate the letter for a threat assessment. After

doing so, Dr. Havassy recommended on June 8, 2006, that Fauth be placed on

administrative leave pending investigation of Mr. Fauth’s allegations contained in the

letter. Dr. Havassy made this recommendation in order to protect the work environment

and employees with whom Fauth worked. In accordance with Dr. Havassy’s

recommendation, Hodson immediately notified Fauth she was being placed on paid

administrative leave. Dr. Havassy interviewed Fauth and administered a battery of

psychological tests. Dr. Havassy concluded in a letter to Hodson, dated July 10, 2006

(Havassy letter), that “Fauth is NOT fit for duty as a Senior DA Investigator nor should

she be permitted to carry a weapon.”

Dr. Havassy reported in August 2006, to the County HR disability manager,

Jennifer Cooper, that Dr. Havassy had conducted a thorough psychological evaluation of

Fauth in order to determine her fitness for officer duty, including carrying a weapon, and

concluded that Fauth was not fit nor safe to carry a weapon, and that Fauth’s problems

which rendered her unfit were of extended and unknown duration. Therefore Dr.

Havassy concluded Fauth was unable to carry out her customary job responsibilities in a

safe and professional manner.

In September 2006, the County initiated efforts to meet with Fauth and place her

in an unsworn officer position that did not require her to carry a firearm. During an

interactive meeting in October 2006, Fauth stated that, without more information

5 regarding the County’s claim she was disabled, she was not willing to consider any

County nonsworn officer positions. Fauth requested the County to provide her with a

copy of the Havassy letter. The County told Fauth she could not have the letter until

Fauth submitted a signed waiver. Fauth promptly provided a waiver.

In November 2006, the County placed Fauth on non-paid status, and in December

2006, the County told Fauth she could not have the Havassy letter because Fauth was not

Dr. Havassy’s client. Fauth thereafter, again, two more times in December, requested

Havassy’s letter and told the County she intended to obtain an independent fitness-for-

duty examination.

In January 2007, the County sent Fauth a letter stating that the County had

determined that she did not have an ADA2 or FEHA3 qualifying disability. The County

also agreed to provide Fauth with a copy of the Havassy letter if Fauth would again

provide a written release. On January 26, 2007, Fauth provided another release, and the

County finally provided a copy of the Havassy letter on February 2, 2007.

On March 7, 2007, Hodson sent Fauth a notice that her employment was

terminated, effective March 17, 2007. The notice stated that her employment termination

was “not being made for disciplinary reasons,” and therefore she was not entitled to a

MOU hearing. Hodson further stated Fauth had not provided evidence she had any

illness or disability, noting her representatives had consistently asserted she did not

2 Americans with Disabilities Act (42 U.S.C. § 12101 et seq.).

3 Fair Employment and Housing Act (§ 12940 et seq.).

6 consider herself disabled in any manner. The County therefore concluded Fauth was not

entitled to disability retirement. Hodson stated in the termination notice that the decision

to terminate Fauth’s employment was based on Fauth’s inability to meet qualifying

standards as a senior district attorney investigator.

Fauth requested an opportunity to challenge her termination, claiming she was fit

to perform her job duties. In response, the County in April 2007, informed Fauth that she

was not entitled to appeal her termination under the MOU and therefore refused to

schedule a MOU termination appeal hearing.

In April 2007, Fauth submitted to an independent fitness-for-duty evaluation by

Dr. William Soltz, a physician selected by plaintiffs. Dr. Soltz concluded Fauth was “fit

for duty and there is no reason . . . why she could not carry a gun.” Dr. Soltz wrote in his

report that “unfortunately her husband, unbeknownst to her, wrote a long and

complicated letter to the department.” In a letter on June 30, 2006, to Dr. Havassy, Fauth

acknowledged she had told Dr. Havassy she had read Mr. Fauth’s letter and that she also

did not tell Dr. Soltz she had personally delivered the letter to Hodson.

When Dr. Soltz was later deposed in January 2009, Dr. Soltz indicated that he

“didn’t have any real objections to [Dr. Havassy’s] conclusions” and was not sure he

would have “found differently than [Dr. Havassy] at that point.” Dr. Soltz further stated

that he would not have found her fit for duty, had he been aware Fauth personally

delivered Mr. Fauth’s letter, with knowledge of its contents, and had he known she

intentionally left her cell phone on at work so that Mr. Fauth could overhear her while

she was at work.

7 At the arbitration hearing, Dr. Soltz stated he based his opinion that Fauth was fit

for duty and fit to carry a gun on her statement to him that she did not have knowledge of

Mr. Fauth’s letter “being written.” Dr. Soltz acknowledged that a patient’s lack of candor

impacts the assessment process and, had Fauth provided the nondisclosed information, he

might have reached a different conclusion. Dr. Soltz concluded based on Fauth’s history

that she would likely experience recurring psychological issues, and he would not have

recommended her for hire had he been conducting a pre-employment assessment.

In July 2007, plaintiffs filed a petition for writ of mandate to compel the County to

provide Fauth with a MOU employment termination appeal hearing. The trial court

granted the first cause of action of plaintiffs’ writ petition, compelling compliance with

Article XII of the MOU. The trial court ordered the County “to engage in the

disciplinary appeals procedure regarding D.A. Investigator Fauth’s termination, pursuant

to Article XII of the MOU, including a post-termination administrative hearing.” The

trial court denied plaintiffs’ second cause of action, alleging violation of the Public Safety

Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.). The trial court also

denied the third cause of action as moot, because the court granted the first cause of

action. The County appealed the order (Fauth I).

In November 2007, the County applied for involuntary disability for Fauth based

on a psychiatric disability. The County HR director, Komers, notified PERS that, after

additional review of medical and other evidence, the County had determined Fauth was

“incapacitated mentally or physically within the meaning of the Public Employees’

Retirement Law” for performance of job duties as a senior district attorney investigator.

8 Komers further stated in his letter to PERS that Fauth’s primary disability condition was

psychiatric and certified her last day of paid status was January 4, 2007, with disability

retirement retroactively effective on January 5, 2007. In January 2008, Fauth appealed

involuntary disability retirement.

Fauth I Decision

In May 2009, this court affirmed the trial court’s order granting the first cause of

action of Fauth’s petition for a writ of mandamus. (Fauth I, supra, 173 Cal.App.4th at p.

1414.) We concluded, “Fauth was entitled to a MOU appeal hearing on her employment

termination. Even though, over eight months after Fauth was terminated, the county

applied for involuntary disability retirement for her, Fauth was nevertheless entitled to a

MOU appeal hearing because at the time of the trial court’s ruling on Fauth’s writ

petition, the county had not reinstated her and thus her employment relationship with the

county remained severed.” (Ibid.)

As to Fauth’s cross-appeal, we concluded in Fauth I that the trial court erred in

denying Fauth’s second cause of action for relief under POBRA (§ 3300 et seq.). We

therefore reversed the judgment as to the second cause of action, with directions that the

trial court determine whether Fauth was entitled to POBRA relief under section 3309.5,

subdivision (e). (Fauth I, supra, 173 Cal.App.4th at p. 1414.4) This court also affirmed

as to the dismissal of the third cause of action, as moot.

4 The California Supreme Court denied the County’s requests for California Supreme Court review and depublication.

9 Fauth’s Federal Civil Rights Lawsuit

While Fauth I was pending, Fauth sued the County in the United States District

Court, Central District of California, for sexual harassment, retaliation, disability

discrimination, failure to accommodate, and failure to engage in the interactive process.

In June 2009, the district court granted the County’s motion for summary judgment,

finding Fauth had a bona fide psychological disability rendering her unfit for duty as a

sworn officer. The district court stated in its judgment that the County had articulated

“legitimate, non-retaliatory reasons for its decision to suspend, and eventually terminate,

Plaintiff”; the County established “that its decisions were motivated by workplace safety

concerns and plaintiff’s inability to fulfill the requirements of her position”; Fauth “fails

to establish that she was qualified for her position, with or without reasonable

accommodation, at the time of any adverse employment action”; and “the County is not

liable for terminating her employment once she was found unfit for duty and unfit to

carry a weapon.”

Post-Fauth I MOU Arbitration Proceedings

During a post-remand trial court hearing in December 2009, the trial court

awarded RSA attorney fees and costs in excess of $70,000, and ordered the County to

pay Fauth a $25,000 statutory penalty under section 3309.5 for maliciously denying her

due process rights. The trial court stated in its order: “Based on the conduct of the

County in connection with this matter, and the additional evidence presented in support

of the motion, the Court finds that the County’s refusal to provide Fauth with a hearing

under the Peace Officers Procedural Bill of Rights Act (‘POBRA’) was a malicious

10 violation of the POBRA with the intent to injure Fauth. [¶] The County took

inconsistent and incompatible positions when first terminating Fauth for cause, refusing

to grant her a hearing under either the Memorandum of Understanding (‘MOU’) or

POBRA, and then belatedly applying for a disability retirement, but without reinstating

her and returning her to administrative leave pending a resolution of the subsequent

application, and continuing to deny her right to a hearing despite its refusal to reinstate

her and vacate the termination for cause.”

On April 15, 2010, a MOU hearing was held, and on September 24, 2010, the

arbitrator issued the first of two decisions in a bifurcated hearing, concluding Fauth was

terminated for cause and the County violated MOU pretermination, procedural due

process provisions. The arbitrator further found that reinstatement was not the proper

remedy and concluded Fauth was entitled to back pay from the date of her termination to

the date of the arbitration hearing. The arbitrator stated in his written decision: “[RSA]

also contends that because the County applied for involuntary disability retirement for

[Fauth] and is therefore pursuing mutually exclusive employment actions concerning

[Fauth], it should not be allowed to defend its termination action in these proceedings.

However, the Court of Appeal, which was fully briefed as to these separate ongoing

employment actions, ordered that [Fauth] be afforded the instant hearing. As such, and

as one issue before the undersigned concerns the just cause propriety of [Fauth’s]

termination, the County is not prohibited from mounting its defenses to the instant

grievance in these proceedings. Simply put, the dispute regarding any interrelationship

11 and/or conflict involving the separate employment actions is best left to a court of

competent jurisdiction for resolution.”

The arbitrator issued a second decision on July 8, 2011, awarding Fauth $297,881

in back pay. This amount included the amount Fauth would have earned from March 17,

2006 through April 15, 2010, plus COBRA premium payments, accrued vacation, and

interest on lost wages, offset by Fauth’s interim earnings and unemployment insurance

benefits.

Petitions for Writ Relief

In October 2011, plainfiffs filed a petition for writ of mandate (writ petition) under

Code of Civil Procedure section 1085, requesting administrative mandate relief.

Plaintiffs alleged that Fauth was not terminated for just cause because such termination

based on a disability is prohibited under section 21153. Plaintiffs further alleged that, to

date, the County had not withdrawn either the application for involuntary disability

retirement or Fauth’s termination for just cause.

The County filed a cross-petition for writ of administrative mandamus under Code

of Civil Procedure section 1094.5, challenging the $297,881 back pay award, on the

ground Fauth was only entitled to disability retirement benefits. In addition, the County

argued this court had already decided the issue of back pay by denying Fauth’s third

cause of action for pretermination due process violations. (Fauth I, supra, 173

Cal.App.4th at p. 1418.) The County also argued the arbitrator erred in awarding back

pay when Fauth was offered comparable alternative employment and disability retirement

benefits, which Fauth refused to accept.

12 On October 5, 2012, the trial court heard Fauth’s writ petition and the County’s

cross-petition. Counsel for Fauth stated that the application for involuntary disability

retirement remained pending and Fauth continued to appeal the application on the ground

she was not disabled or unfit to perform her job. Fauth’s attorney argued that under

section 21153, the County was required to rescind Fauth’s termination for cause. The

County’s attorney responded that it would drop the termination for cause determination if

Fauth accepted involuntary disability retirement. This would render the termination for

cause matter moot.

On November 28, 2012, the trial court entered an order upholding the arbitrator’s

decision, with the exception the trial court found back pay should commence as of

September 24, 2010, when the first arbitration award was filed. Plaintiffs appeal, and the

County cross-appeals the November 15, 2012 order and subsequent judgment.

III

STANDARD OF REVIEW

We review whether the County terminated Fauth’s employment for cause, prior to

applying for disability retirement, as a question of law applied to undisputed facts. It is

undisputed there was cause for terminating Fauth but disputed as to whether the MOU

appeal arbitrator could, as a matter of law, under section 21153, find she was terminated

for just cause. “Trial courts must ‘uphold an agency action unless it is arbitrary,

capricious, lacking in evidentiary support, or was made without due regard for the

petitioner’s rights. [Citations.]’ [Citation.] When considering a case, a trial court must

‘ensure that an agency has adequately considered all relevant factors, and has

13 demonstrated a rational connection between those factors, the choice made, and the

purposes of the enabling statute. [Citation.]’ [Citation.] Consequently, because ‘trial

and appellate courts perform the same function in mandamus actions, an appellate court

reviews the agency’s action de novo.’ [Citation.]” (Environmental Charter High School

v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 145, quoting

Sequoia Union High School Dist. v. Aurora Charter High School (2003) 112 Cal.App.4th

185, 195.)

To the extent the trial court has decided pure questions of law based upon

undisputed facts, a de novo standard of review will apply on appeal. (Anserv Ins. Servs.,

Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204.) “‘In such cases, as in other instances

involving matters of law, the appellate court is not bound by the trial court’s decision, but

may make its own determination. [Citation.]’ [Citation.]” (Pacific Gas and Electric Co.

v. State Dept. of Water Resources (2003) 112 Cal.App.4th 477, 491, quoting Rodriguez v.

Solis (1991) 1 Cal.App.4th 495, 502.) Here, where the issues under review are legal in

nature and the underlying facts are undisputed, we apply a de novo standard of review.

(Pacific Gas, at p. 491.)

IV

PLAINTIFFS’ APPEAL—

TERMINATION BASED ON JUST CAUSE

Plaintiffs appeal the trial court order denying their writ of mandate petition

seeking withdrawal of Fauth’s employment termination. “[A] writ of mandate under

Code of Civil Procedure section 1085 requires that the petitioner establish, among other

14 things, that the County failed to perform an act despite having a clear and present

ministerial duty to do so.” (Lazan v. County of Riverside (2006) 140 Cal.App.4th 453,

460 [4th Dist., Div. 2] (Lazan).) Fauth argues the trial court erred in denying her writ

petition because the County was precluded under section 21153 from terminating Fauth

for cause while at the same time determining that she was disabled. The County was

required to apply for disability retirement for Fauth under section 21153, and did so in

November 2007, after terminating Fauth.

Section 21153 imposes upon the County a ministerial duty to apply for disability

retirement if the County believes an employee is disabled. (Lazan, supra, 140

Cal.App.4th at p. 460.) “[T]he Legislature has precluded an employer from terminating

an employee because of medical disability if the employee would be otherwise eligible

for disability retirement.” (Haywood v. American River Fire Protection Dist. (1998) 67

Cal.App.4th 1292, 1305; Lazan, supra, 140 Cal.App.4th at p. 460.) “Section 21153,

therefore, imposes a ministerial duty to apply for disability retirement if the contingency

exists, namely, if the employee is ‘believed to be disabled.’” (Lazan, at p. 460.)

Section 21153 states: “Notwithstanding any other provision of law, an employer

may not separate because of disability a member otherwise eligible to retire for disability

but shall apply for disability retirement of any member believed to be disabled[.]”

Section 21153 is from the “Retirement from Employment” chapter of the PERS

legislation (§ 20000 et seq.). The purpose of the statute is to “‘serve two objectives: to

induce persons to enter and continue in public service, and to provide subsistence for

disabled or retired employees and their dependents.’ [Citation.]” (Wheeler v. Board of

15 Administration (1979) 25 Cal.3d 600, 605; in accord, Lazan, supra, 140 Cal.App.4th at p.

459.) “‘Disability pension laws are intended to alleviate the harshness that would

accompany the termination of an employee who has become medically unable to perform

his duties. (§ 20001.)’ [Citation.] Generally, PERS legislation is to be construed

liberally in favor of the employee to achieve the above objectives. [Citation.]” (Lazan, at

p. 459.)

As Fauth correctly asserts in this appeal, under section 21153, the County was

precluded from terminating her employment because of a disability if she was eligible to

retire for disability. The problem in the instant case has been that Fauth contested, and

continues to contest involuntarily disability retirement. This court previously held in

Fauth I that Fauth was entitled to a MOU appeal of her termination for cause, because

Fauth’s separate PERS appeal of involuntarily disability retirement remained pending in

a separate, mutually exclusive forum.

As this court stated in Fauth I, “While Fauth is entitled to appeal involuntary

disability retirement under PERS law, this does not bar her right to a MOU appeal, which

provides Fauth with a separate opportunity to challenge her dismissal. Under the

circumstances in this case, where the county removed Fauth from her job by both

terminating her for cause and then applying for her involuntary disability retirement,

Fauth remained entitled to a MOU appeal hearing challenging her termination for cause,

in addition to a separate appeal contesting involuntary disability retirement, unless there

was a final determination upholding Fauth’s disability retirement. There is no evidence

in the record this occurred.” (Fauth I, supra, 173 Cal.App.4th at p. 1419.)

16 As Fauth requested in the trial court and on appeal, and as this court ordered in

Fauth I, Fauth received a MOU appeal hearing on whether she was properly terminated

for cause. At the time of the MOU hearing, there was unrefuted evidence that Fauth’s

involuntary disability retirement appeal was still pending. The arbitrator therefore

deferred to the court resolution of the County’s use of conflicting means of removing

Fauth from her job, and decided the factual issue of whether there was just cause to

terminate Fauth. Based on evidence Fauth was not mentally fit to carry a gun, a

requirement of her position as a sworn officer, the arbitrator found there was just cause to

terminate Fauth.

There was also evidence of the County attempting to accommodate Fauth’s

disability by offering Fauth 13 other job positions, which did not require carrying a gun

and that Fauth was qualified to fill. Fauth did not accept any of the positions. She also

refused to accept involuntary disability retirement, insisting she did not have a disability.

Under these circumstances, in which Fauth was unqualified to perform her job because

she was not fit to carry a gun, and she would not accept any of the County’s unsworn

officer positions, the arbitrator’s opinion and award, finding Fauth was terminated for just

cause, was proper. Since there was no evidence Fauth’s alleged disability retirement

appeal had been resolved with finality, the arbitrator was not required to find termination

was improper under section 21153, because there remained the possibility involuntary

disability retirement might not be upheld by PERS on appeal and Fauth could then be

terminated for cause.

17 Plaintiffs cite Fauth I, supra, 173 Cal.App.4th 1410, Riverside Sheriffs’ Assn. v.

County of Riverside (2011) 193 Cal.App.4th 20 [Fourth Dist., Div. Two] (Sanchez), and

Lazan, supra, 140 Cal.App.4th 453, for the proposition the arbitrator was precluded

under section 21153 from finding that the County terminated Fauth for just cause. These

cases do not address plaintiffs’ objection in the instant appeal to the arbitrator’s

determination that there was just cause to terminate Fauth. The issue in Lazan was

whether the county was required to apply for involuntary disability retirement under

section 21153. We held in Lazan that the county had a duty to do so because there was

evidence the county believed the employee was disabled and incapable of performing her

job duties. (Lazan, at pp. 456, 464.) Here, after terminating Fauth for cause, the County

applied for involuntary disability retirement for Fauth. However, the County has not

expressly rescinded termination of Fauth for cause, and the parties have not established

that Fauth’s involuntary disability retirement appeal is no longer pending.

Fauth I and Sanchez, while instructive, also do not address the issue raised here.

In Fauth I and Sanchez, the issue was whether the employee was entitled to a MOU

hearing. This court held in both cases the employee was entitled to a MOU hearing, even

though the County had also applied for disability retirement for the employee, because

the County did not fully rescind termination of the employee. (Fauth I, supra, 173

Cal.App.4th at p. 1414, and Sanchez, supra, 193 Cal.App.4th at p. 32.) Although in

Sanchez, the County said it was rescinding termination, the County, in effect, did not

completely rescind termination because the County did not restore all of the employee’s

wages and benefits that she would have been entitled to had she been an employee.

18 Fauth I and Sanchez are not on point here because in those cases there had not yet been a

MOU hearing and therefore we did not address the issue of whether the MOU hearing

officer was required to find the County terminated the employee without just cause as a

matter of law under section 21153, when the employee’s disability retirement appeal

remained pending.

Plaintiffs argue the County has improperly, simultaneously taken two

incompatible employment actions removing Fauth from her job. The County initially

terminated Fauth for cause and then applied for involuntary disability retirement, without

rescinding Fauth’s termination. Because Fauth had a right to appeal both these actions in

mutually exclusive forums and Fauth demanded a MOU hearing without first resolving

her disability retirement appeal, this court permitted a MOU hearing on the termination

for cause matter. The MOU arbitrator was not required to resolve the conflict between

the two incompatible employment actions, since it was unrefuted Fauth’s disability

retirement appeal remained pending. As stipulated by the parties at the arbitration

hearing, the issue was whether there was cause to terminate Fauth, and the arbitrator

appropriately found there was just cause. Under such circumstances, the trial court did

not err in denying plaintiffs’ petition for a writ of mandate challenging the arbitrator’s

order finding there was just cause to terminate Fauth.

Plaintiffs argue that, because under section 21153 Fauth was not lawfully

terminated, termination could not be for just cause. But it has not been established there

was a final determination as to Fauth’s disability retirement. Therefore the arbitrator was

19 not required to find under section 21153 that the County terminated Fauth without cause

because she was disability retired.

V

THE COUNTY’S CROSS-APPEAL

In the County’s cross-appeal, the County challenges the arbitrator’s back pay

award on numerous grounds, as discussed below.

A. Facts and Procedural Background Relevant to Back Pay Award

In Fauth I, Fauth filed a petition for writ of mandate, alleging the County’s failure

to allow her to appeal her employment termination violated (1) Article XII of the MOU

(first cause of action); (2) POBRA protections, including section 3304, subdivision (b)

(second cause of action); and (3) the Fifth and Fourteenth Amendments of the federal

Constitution (third cause of action). Fauth requested the court to order a MOU hearing,

$25,000 in civil penalties, back pay, and attorney fees and costs under POBRA. (Fauth I,

supra, 173 Cal.App.4th at p. 1417.)

The trial court granted the first cause of action, concluding Fauth was entitled to a

MOU appeal hearing, but denied the second cause of action on the ground Fauth was not

entitled to relief under POBRA because the County’s action was not punitive. The court

further denied the third cause of action on the ground Fauth’s constitutional due process

challenges were moot, since the court was ordering a MOU appeal hearing. (Fauth I,

supra, 173 Cal.App.4th at pp. 1417-1418.)

In Fauth I, we affirmed the trial court rulings as to the first and third causes of

action, and reversed the trial court ruling dismissing the second cause of action for

20 POBRA relief. (Fauth I, supra, 173 Cal.App.4th at p. 1414.) This court concluded the

County violated POBRA but, because “the trial court did not reach the issue of whether

there was malice, which is necessary in order to recover POBRA relief under section

3309.5, this matter [was] remanded to the trial court for factual findings as to whether the

county maliciously violated POBRA by refusing to provide Fauth with a post-termination

hearing on her dismissal.” (Id. at p. 1426.) Under Fauth I, we concluded Fauth was

entitled to a MOU hearing and to a determination as to whether she was entitled to

POBRA relief under section 3309.5.

Upon remand, Fauth received a MOU hearing. The parties stipulated to the

arbitrator deciding two issues: (1) whether Fauth was terminated for just cause and (2) if

not, what was the appropriate remedy. The arbitrator also considered the issue of

whether Fauth’s preremoval due process rights were violated and whether she was

entitled to back pay. The arbitration consisted of a bifurcated hearing, in which the

arbitrator first heard and decided the issue of whether Fauth was terminated for just

cause. On September 24, 2010, the arbitrator issued a decision finding that Fauth was

terminated for just cause. The arbitrator further concluded that the County violated the

due process provisions of MOU Article XII and therefore Fauth was entitled to back pay.

The arbitrator conducted a second hearing, addressing the remedy issues arising

from the County’s due process violations, and issued a decision on July 8, 2011. During

the remedy hearing, Jennifer Cooper, principal HR analyst for the County HR department

and manager of disability and industrial disability retirement, testified that she met with

Fauth as part of the interactive process. The meeting was pursuant to the County’s belief

21 Fauth had a disability for which she was entitled to a reasonable accommodation. There

were other County investigator positions available to Fauth that did not require Fauth to

be a sworn officer. Fauth said she was not interested in any other County jobs or

accommodation. Fauth asked for a copy of the Havassy letter.

Cooper explained that, when disability retirement is granted, an employee can

work in another position. An employee can receive salary from another County job and

disability retirement concurrently, up to the salary amount the employee was earning in

their previous sworn position (adding the employee’s disability retirement benefit and

new job salary). Fauth could have received disability retirement benefits, plus a salary

from a different County job, with a cap in her earnings and disability retirement benefits,

of 100 percent of her previous salary. Cooper acknowledged that appealing termination

for cause is a separate issue from that of disability retirement.

Clarence Allen, manager of the San Bernardino Regional Office of PERS, testified

that, when PERS receives a resolution or grant of disability retirement from a local

agency, PERS processes the application and calculates the disability retirement benefits

based on a set formula. The disability retirement benefits estimate for Fauth was

$3,127.63.

Veronica Veal, Riverside County HR services manager for the justice team, which

provides HR services for the district attorney and public defender offices, testified the

County met with Fauth in October 2006, and sent her a letter regarding meeting in

December 2006, in furtherance of the interactive process, but Fauth was not interested in

participating. Had Fauth been willing to participate, the County would have been

22 obligated to place Fauth in one of the available non-sworn County positions. Sworn

positions were not considered because Fauth had been determined to be unfit for the

sworn positions. The County looked at Fauth’s qualifications to determine at the time of

the interactive process which positions were available, for which Fauth was qualified. A

month later, reversing course, the County sent Fauth a letter dated January 16, 2007,

stating that the County had concluded there was no medical evidence suggesting Fauth

had a qualifying disability. Veal acknowledged that HR does not typically engage in the

interactive process with people who are not County employees. At the time of the

interactive process, Fauth was still a County employee, and was still employed by the

County as of December 6, 2006.

Fauth testified that in 2008, she worked as an administrative assistant II for UC

Irvine. In 2009, she was promoted to senior administrative analyst and currently held that

position at UC Irvine. Her gross biweekly salary at UC Irvine was $1,969.35. Fauth

stated that, after the County terminated her on March 17, 2007, Fauth diligently looked

for work. She applied for numerous jobs but did not apply for jobs with the County

because she had been terminated and was involved in litigation with the County

regarding her termination. Fauth believed that, at that point, she was not a viable

candidate for a County job.

Fauth further testified that, although the County granted her disability retirement,

she never collected any disability retirement benefits because she appealed disability

retirement. Fauth believed she was not psychologically disabled. Fauth stated that, as far

as she knew, her appeal remained pending. Fauth’s attorney also told the arbitrator that,

23 as far as he knew, Fauth’s appeal was still pending. Fauth believed that, upon appealing

disability retirement, payment of disability retirement benefits is stayed. The County’s

attorney argued that Fauth could have received disability retirement benefits during the

appeal. Fauth confirmed she had not received any disability retirement benefits. On

cross-examination, Fauth stated that she never applied for disability retirement and was

never given anything to accept. Fauth testified that she and RSA, through their attorney,

were appealing the County’s nonindustrial disability retirement application because Fauth

believed she was not psychologically disabled.

The arbitrator issued an award and opinion on the remedy issues on July 8, 2011.

The arbitrator determined that Fauth was entitled to recover from the County $297,881 in

back pay from the effective date of termination, March 17, 2007, through April 15, 2010,

the date of the initial MOU hearing, for the County’s violation of Fauth’s due process

rights under Article XII of the MOU. Fauth was also awarded three years of PERS

service credit for that same period. The arbitrator rejected the County’s arguments that,

because Fauth may be entitled to disability retirement, she was barred from receiving

back pay. The arbitrator reasoned that, although termination for cause and involuntary

disability retirement involve two distinct, incompatible means of removing an employee

from employment, “a final determination remains pending regarding [Fauth’s] appeal of

her disability retirement benefits.” The arbitrator also concluded there was sufficient

evidence Fauth attempted to mitigate her damages.

The parties filed writ petitions in the trial court, objecting to the arbitrator’s

arbitration decisions. Following extensive oral argument, the trial court denied plaintiffs’

24 writ petition and the County’s cross petition, with the exception the trial court granted

plaintiffs’ petition to the extent the trial court extended back pay beyond the April 15,

2010, MOU hearing, through the date of issuance of the initial arbitration decision issued

on September 24, 2010. The trial court noted the pending disability retirement appeal

was not before the court, and the disability retirement and termination for cause

proceedings were being decided in mutually exclusive forums. The trial court concluded

it did not have sufficient information to determine whether disability retirement

preempted termination for cause.

B. Scope of the Arbitrator’s Authority to Award Back Pay

The County argues the arbitrator did not have authority to decide the issue of

whether Fauth’s preremoval due process rights were violated and she was entitled to back

pay, because in Fauth I, supra, 173 Cal.App.4th at page 1427, this court affirmed the trial

court’s denial of Fauth’s third cause of action alleging pretermination due process

violations.

The arbitration decision states that “the Arbitrator’s order of back pay was

grounded in the County’s violation of the procedural due process rights afforded by

MOU Article XII rather than the consideration of external law.” The decision further

states: “With respect to the County’s argument that [Fauth] is not entitled to the

‘Skelly’[5] remedy specified in the award, it is emphasized that back pay was ordered to

remedy the County’s act of terminating [Fauth] without complying with the MOU’s

5 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).

25 Article XII preremoval due process requirements. That the undersigned ultimately found

that [Fauth]was terminated for cause and was therefore ineligible for reinstatement does

not negate or nullify her entitlement to back pay for the County’s procedural violation of

the MOU. As pointed out by the Association, neither Skelly nor Barber can be read for

the proposition that an employee in [Fauth’s] situation is foreclosed from receiving back

pay for a proven contractual due process violation as was the case here.”

This court’s holding in Fauth I did not preclude the arbitrator from awarding back

pay arising from the County’s violation of MOU Article XII rights to pretermination due

process protections. In Fauth I, this case was remanded for a MOU hearing and

determination of whether Fauth was entitled to recover POBRA relief under section

3309.5. Subdivision (e) of section 3309.5 provides in relevant part: “In addition to the

extraordinary relief afforded by this chapter, upon a finding by a superior court that a

public safety department, its employees, agents, or assigns, with respect to acts taken

within the scope of employment, maliciously violated any provision of this chapter with

the intent to injure the public safety officer, the public safety department shall, for each

and every violation, be liable for a civil penalty not to exceed twenty-five thousand

dollars ($25,000) to be awarded to the public safety officer whose right or protection was

denied and for reasonable attorney’s fees as may be determined by the court. If the court

so finds, and there is sufficient evidence to establish actual damages suffered by the

officer whose right or protection was denied, the public safety department shall also be

liable for the amount of the actual damages.” (Italics added.) Here, the trial court found

26 the County maliciously violated Fauth’s due process rights and awarded her a $25,000

civil penalty under section 3309.5.

Under Barber, an employee who is terminated in violation of Skelly

pretermination due process requirements or other constitutional rights is entitled to back

pay during the period preceding compliance with pretermination due process

requirements. (Barber, supra, 18 Cal.3d at p. 403.) As the California Supreme Court

explained in Barber, the constitutional infirmity of the disciplinary procedures used in

Barber “was the imposition of discipline prior to affording the employee notice of the

reasons for the punitive action and an opportunity to respond. [Citation.]” (Barber,

supra, 18 Cal.3d at p. 403.) This infirmity is not corrected until the employee has been

given an opportunity to present his arguments to the authority initially imposing

discipline. (Ibid.) “Under the procedures applied to plaintiff, the constitutional vice

existed until the time the board rendered its decision. Prior to that time, the discipline

imposed was invalid.” (Ibid.)

Because Fauth was terminated before she was afforded an opportunity to respond

to the reasons for her termination, she was entitled to back pay until the County fully

complied with the MOU Article XII due process requirements. Under Barber,

compliance did not occur until Fauth received a MOU hearing and the arbitrator issued

his decision on whether Fauth was terminated for just cause. Even though the third cause

of action for pretermination due process violations was dismissed, and this court affirmed

dismissal of the third cause of action in Fauth I, this did not preclude the arbitrator from

awarding back pay and considering pretermination violations under Article XII of the

27 MOU. The MOU requires compliance with Skelly pretermination due process

protections, including affording the employee notice of the reasons for termination and an

opportunity to respond. (Skelly, supra, 15 Cal.3d at p. 215.)

The third cause of action was founded on the Fifth and Fourteenth Amendments of

the United States Constitution. The trial court concluded, as did this court, that by

allowing plaintiffs to proceed on the first cause of action, the third cause of action

seeking relief for pretermination due process violations was moot. This is because the

first cause of action, providing for a MOU arbitration hearing and remedies, encompassed

the allegations and relief included in Fauth’s third cause of action, alleging

pretermination due process violations. In addition, the second cause of action requested a

hearing mandated under section 3304, subdivision (b)6 and POBRA relief.

Under Fauth I, the County was required to provide Fauth with a MOU appeal

hearing. In turn, the MOU arbitrator had authority to address the County’s violations

under the MOU when terminating Fauth, including pretermination due process violations

enumerated in Article XII of the MOU, and award Fauth appropriate remedies, including

damages. Under Article XII of the MOU and section 3309.5, the arbitrator therefore had

authority to award Fauth back pay for the County’s violation of her pretermination due

6 Section 3304, subdivision (b), provides: “(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.”

28 process rights, to respond to the County terminating Fauth for cause. (Skelly, supra, 15

Cal.3d at p. 215.)

C. Back Pay Even Though Terminated for Cause

Citing Barber, supra, 18 Cal.3d 395, the County argues that Fauth did not legally

qualify for back pay for wrongful discipline because her termination was sustained for

cause. The County quotes Barber, which states, “damages consist only of back pay for

the period discipline was improperly imposed.” (Id. at p. 402.) The County argues Fauth

should not be rewarded for appealing a substantively correct termination.

In Barber, supra, 18 Cal.3d 395, the plaintiff was dismissed from his job as a

California Youth Authority counselor, based on charges of dishonesty, willful

disobedience, and other misconduct. Seven months later he was accorded a State

Personnel Board administrative hearing. The board adopted the hearing officer’s

decision that the employee’s dismissal be sustained. The trial court denied the

employee’s petition for writ of mandate seeking reinstatement and back pay. (Id. at pp.

398-399.) The California Supreme Court reversed the trial court judgment as to denial of

back pay, holding that an employee dismissed without compliance with Skelly

pretermination due process rights (notice and an opportunity to respond) is entitled to

back pay from the time discipline is actually imposed until the date the State Personnel

Board files its decision. (Barber, at pp. 402-403.)

Here, as in Barber, even though the arbitrator found Fauth was terminated for just

cause, Fauth was entitled to back pay because she was terminated before she was given

an opportunity to respond to notice of termination. It was not until after the court ordered

29 the County to provide a MOU appeal hearing and Fauth received the hearing, that Fauth

had the opportunity to contest her termination for cause.

D. Absence of Showing Disability Retirement is Final

The County argues Fauth never properly appealed disability retirement and, even

if she did, her appeal was not timely and is no longer pending. But the County did not

establish this at the arbitration hearing or during the subsequent trial court hearing on the

writ petitions. In a letter dated January 31, 2008, sent to the County’s HR director, Fauth

stated that on January 26, 2008, she received an application for retirement benefits from

PERS and “hereby appeal [the County’s] decision to retire me.” During the remedy

portion of the MOU arbitration, Fauth testified she appealed disability retirement and

never collected any disability retirement benefits. Fauth stated that, as far as she knew,

her appeal was still pending. Fauth’s attorney also stated that Fauth’s disability

retirement appeal was pending. The County did not refute this. During cross-

examination, Fauth again stated that she and RSA were appealing the County’s disability

retirement application because she did not believe she was psychologically disabled.

Even though the PERS regional manager testified at the MOU hearing, there was no

testimony or evidence presented as to whether Fauth had appealed disability retirement,

whether her appeal was rejected as improper or untimely, or whether it was still pending.

The arbitrator appropriately awarded Fauth back pay, since the County did not

establish during the arbitration hearing that Fauth’s appeal was no longer pending and

disability retirement was final. As we stated in Fauth I, termination for cause and

involuntary disability retirement involve mutually exclusive forums, and therefore Fauth

30 had a right to a MOU hearing contesting termination and to seek appropriate POBRA

remedies under section 3309.5, subdivision (e). We recognize that, as the County asserts

in its cross-appeal, Fauth cannot recover both disability retirement benefits and back pay

for termination. (Davis v. Los Angeles Unified School District (2007) 152 Cal.App.4th

1122, 1134, citing Blackburn v. Martin (4th Cir. 1992) 982 F.2d 125, 129; Hartman v.

Duffey (D.D.C. 1998) 8 F.Supp.2d 1, 5 [“back pay is cut off by death, disability,

retirement, or voluntary departure from the workforce”].) “‘[A]s a general rule, a

claimant will not be allowed back pay during any periods of disability . . . (or would only

be able to recover the difference in disability pay . . .) on the theory that she similarly

would not have been able to work. . . .’ [Citation.]” (Davis, at p. 1134, quoting Mason v.

Association for Independent Growth (E.D. Pa. 1993) 817 F.Supp. 550, 553-554.)

The County argues that awarding Fauth back pay would result in Fauth “double

dipping” or receiving double recovery, consisting of her salary and disability retirement

benefits. But the record shows that, at the time of the arbitration hearing and subsequent

writ petition hearing, Fauth had attempted to appeal disability retirement, she had not

received any disability retirement benefits, and, according to Fauth and her attorney, her

appeal was still pending. Under such circumstances it remained speculative whether

Fauth would receive disability retirement benefits. Once it is established Fauth’s

disability retirement appeal is no longer pending and there is a final determination as to

whether Fauth is entitled to disability retirement benefits, the appropriate adjustment or

offset can be made, if necessary, so that Fauth does not receive a double recovery of both

her salary and disability retirement benefits.

31 E. Pretermination Due Process Violations

The County argues it did not violate Fauth’s pretermination due process rights.

The County asserts that, before terminating her, it clearly stated in several letters that the

County intended to terminate Fauth. But the County’s letters vacillated between advising

Fauth she had a disability and would be involuntarily disability retired, and telling her she

did not have a disability and would be terminated for cause. She was also told she was

not entitled to a MOU hearing under Article XII, when she should have been told she was

entitled to a MOU hearing and provided an opportunity to be heard and object to

termination. The County did not comply with the termination procedures required under

Article XII, which provided due process protections.

Article XII, section 6 provides: “By resolution, the Board of Supervisors shall

provide a procedure whereby the involuntary dismissal, demotion, reduction in

compensation, or suspension of an employee, shall at the employee’s request, be

reviewed to determine whether such action was justified and should be upheld. The

procedure shall include the right, after notice, to a hearing before a designated body or

officer having power to affirm, revoke or modify the action reviewed.”

In addition, Article XII, section 9 requires that the County serve an intent and

implementation letter, providing written notice of intent to terminate, at least seven

working days before the effective date of termination. The letter must attach a copy of

the materials upon which the action is based or make them available upon request, and

include a “statement informing the employee of the right to respond either verbally or in

writing, to the Department Head prior to the effective date of the disciplinary action(s).”

32 The County is also required under Article XII, section 9 to include in the intent letter a

“statement informing the employee of the right to appeal within 10 working days of the

date the letter is served on the employee.” The County acknowledges that Article XII,

section 9 of the MOU essentially codifies the Skelly due process requirements.

The County did not substantially comply with the MOU Article XII due process

requirements. None of the County’s letters prior to the March 7, 2007, termination letter,

notified Fauth that the County intended to terminate her, provided a date of termination,

or notified Fauth of her pretermination right to respond to termination and inspect

supporting documentation. In Hodson’s March 7, 2007, letter notifying Fauth she was

terminated effective March 17, 2007, Hodson indicated Fauth was not entitled to a review

of her termination. Instead of telling Fauth she had a right to a MOU appeal, the County

erroneously told her Article XII of the MOU was inapplicable and she was not entitled to

any due process protections because her termination did not constitute a taking of any

property right.

The County further denied Fauth the opportunity to be heard and object to her

termination. On March 15, 2007, plaintiffs’ attorney notified the County that, in

furtherance of challenging Fauth’s termination, plaintiffs requested copies of all

documentation the County relied upon in terminating her. The County did not respond.

Later, in response to plaintiffs’ attorney’s April 18, 2007, letter enclosing a demand to

reinstate Fauth, the County sent plaintiffs’ attorney a letter dated April 25, 2007, stating

that Fauth was not entitled to a MOU appeal hearing because she was not terminated for

disciplinary reasons.

33 The County also rejected plaintiffs’ request on January 9, 2008, for a Skelly

meeting with the County. The County repeatedly denied Fauth’s attempts to respond to

termination as procedurally inappropriate. This court disagreed in Fauth I, holding that

Fauth was entitled to a MOU hearing. (Fauth I, supra, 173 Cal.App.4th at p. 1424.) The

County’s failure to provide Fauth with an opportunity to respond, either before or after

termination, constituted a denial of Fauth’s due process rights, which, in turn, entitled

Fauth to back pay until she received a proper hearing and decision on her MOU appeal.

(Barber, supra, 18 Cal.3d at pp. 402-403; Skelly, supra, 15 Cal.3d at p. 215.) There is

more than ample evidence establishing that the County violated Fauth’s due process

rights by terminating her without complying with due process procedural requirements

stated in MOU Article XII.

F. Back pay Extending from Termination, Until Date of Arbitrator’s Decision

Because the County denied Fauth’s request for a MOU hearing, under Barber, she

is entitled to back pay from the time of her termination on March 17, 2007, until the date

the arbitrator issued his decision on September 24, 2010. (Barber, supra, 18 Cal.3d at

pp. 404-405.) Fauth is entitled to back pay during this period because of the County’s

“imposition of discipline prior to affording [her] notice of the reasons for the punitive

action and an opportunity to respond. (Skelly v. State Personnel Bd., supra, 15 Cal.3d at

p. 215.) This infirmity is not corrected until the employee has been given an opportunity

to present [her] arguments to the authority initially imposing discipline. (Id.) Under the

procedures applied to plaintiff, the constitutional vice existed until the time the [County]

rendered its decision. Prior to that time, the discipline imposed was invalid. The

34 [County’s] argument that we should measure damages terminating at the time the

employee could reasonably have responded cannot be accepted. The due process right to

respond exists only if response is permitted to be made, and therefore must be available

for consideration prior to rendering the disciplinary decision. As noted, at the time

plaintiff was permitted to file an answer, the discipline imposed on [her] was invalid.

The proper period for measuring the amount of back pay due therefore begins at the time

discipline is actually imposed and ends on the date the [County] files its decision.”

(Barber, at p. 403.)

The County argues the trial court incorrectly extended back pay beyond the April

15, 2010, MOU hearing date, until the arbitration decision was issued on September 24,

2010. The arbitrator limited back pay to the period from termination, until the April 15,

2010, MOU hearing date. The arbitrator explained in his decision that, “Although the

Court’s holding in Barber . . . is acknowledged, the Arbitrator believes that the

contractual due process violation at issue was sufficiently cured as of the April 15, 2010

hearing to toll any back pay remedy. . . . Thus, [Fauth’s] back pay is limited to the period

from her termination, March 17, 2007, to the April 15, 2010 hearing.”

However, even though Fauth received a hearing, the MOU appeal process was not

complete and her termination was not final until she received a decision. Barber clearly

states that the back pay period ends on the date the decision on the employee’s appeal is

filed, not the date of the hearing. (Barber, supra, 18 Cal.3d at p. 403.) The trial court in

the instant case appropriately extended back pay until the date the arbitrator issued his

decision on September 24, 2010.

35 G. Mitigation of Fauth’s Damages

The County contends the arbitrator erred in not taking into account Fauth’s failure

to mitigate her damages. The County argues Fauth rejected 13 jobs the County offered

her during the interactive process. She also refused to accept disability retirement

benefits. The County argues that, because Fauth did not mitigate her damages, she is not

entitled to any back pay, or her back pay should be significantly reduced.

“In the context of wrongful termination, the general rule is that a public employee

who is wrongfully discharged has a duty to exercise due diligence to mitigate damages

while pursuing remedies against the employer. [Citation.] The exercise of due diligence

includes the duty to look for comparable employment. [Citation.] The employer has the

burden to show mitigation, i.e., what the employee has earned or with reasonable

diligence might have earned from other employment. [Citation.] ‘However, before

projected earnings from other employment opportunities not sought or accepted by the

discharged employee can be applied in mitigation, the employer must show that the other

employment was comparable, or substantially similar, to that of which the employee has

been deprived; the employee’s rejection of or failure to seek other available employment

of a different or inferior kind may not be resorted to in order to mitigate damages.’

[Citation.]” (Martin v. Santa Clara Unified School Dist. (2002) 102 Cal.App.4th 241,

255.)

Although the County offered Fauth 13 County jobs at the interactive meeting in

October 2006, there was substantial evidence that the jobs were not comparable jobs.

Also, the jobs were offered before Fauth was terminated, during the interactive process

36 for accommodating Fauth’s disability, while she was on paid leave, and before she was

provided a copy of the Havassy letter stating the basis of the County’s determination

Fauth had a disability. Fauth did not believe she had a disability and therefore was not

willing to accept a nonsworn officer position. Fauth told the County she could not

determine what jobs she qualified for because the County had not provided her with the

Havassy letter or any information regarding her alleged permanent limitations. Then

several months later, in January 2007, the County reversed course and told Fauth she did

not have a disability or illness; and, reversed course again, terminating her in March 2007

on the ground she could not perform her job because of a mental disability. Then in

November 2007, the County reversed course once again and applied for disability

retirement, retroactive to January 2007.

The County vacillated between treating Fauth as having a disability and not having

a disability; terminating her for cause, and then applying for disability retirement for her.

Under these circumstances, Fauth did not have a duty to mitigate until she was notified

she was terminated in March 2007. (California School Employees Assn. v. Personnel

Commission (1973) 30 Cal.App.3d 241, 249-250; Valle de Oro Bank v. Gamboa (1994)

26 Cal.App.4th 1686, 1691.) This is when the back pay awarded to Fauth began

accruing. There is substantial evidence that, at this point, Fauth mitigated her damages

by making a concerted effort to find another job.

It was reasonable that once the County terminated Fauth she did not apply for any

of the County jobs previously offered, since it was not likely she would be hired after she

was terminated and was litigating her termination. Furthermore, there was evidence that

37 the County jobs offered her were not comparable because most of the jobs did not offer

similar duties and responsibilities, and the compensation was significantly less than her

current job (at least 38 percent less). In addition, the County did not offer evidence of

any comparable non-County jobs.

Fauth, on the other hand, presented substantial evidence that she made a

concerted, good faith effort to find another job after she was terminated. Fauth testified

at the arbitration hearing that in 2008, after her termination on March 17, 2007, she

consistently looked for work. She applied for numerous jobs. Fauth testified she did not

apply for jobs with the County because she was terminated and involved in litigation

regarding her termination. Fauth reasonably believed she was not a viable candidate for a

County job at that point. Fauth further testified that eventually she was hired by UC

Irvine as an administrative assistant. In 2009, she was promoted to senior administrative

analyst and currently holds that position at UC Irvine. The arbitrator appropriately offset

the amount of back pay awarded to Fauth by the sum of $89,313, consisting of Fauth’s

unemployment insurance benefits and earnings received from her UC Irvine employment.

Fauth’s refusal to accept disability retirement benefits also does not constitute a

failure to mitigate, because Fauth was appealing disability retirement. Fauth was not

required to accept disability retirement benefits for purposes of mitigating back pay

damages, or County jobs, when the County terminated her employment for just cause,

and the jobs were offered five months before the County told her it intended to terminate

her. Substantial evidence supports the arbitrator’s determination that Fauth did not fail to

mitigate her damages.

38 VI

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

Sanctions are denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

RAMIREZ P. J.

KING J.