Judge James C. Chalfant, Case Number: 24PSCP00069, Date: 2025-02-06 Tentative Ruling

Petitioner Randy Monroe (“Monroe”) petitions for a writ of mandate directing Respondent California Public Employees’ Retirement System (“CalPERS”) to set aside its ruling that he is ineligible for disability retirement.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. The Petition

On February 5, 2024, Petitioner Monroe filed the Petition against Respondent CalPERS alleging a cause of action for administrative mandamus. The Petition named the California Department of Corrections and Rehabilitation (“CDCR”) as Real Party-in-Interest. The operative pleading is the First Amended Petition (“FAP”), filed on February 28, 2024, which alleges in pertinent part as follows.

Before he retired, Monroe was a parole agent with the CDCR. In his role, he was a peace officer supervising adult felons released from state prison to parole supervision. He had to carry a firearm and prove proficiency with it -- specifically a 9mm semi-automatic weapon. As a condition of employment, he had to fire that weapon several times in sequences as instructed by rangemasters and achieve a qualifying score with both hands. He had to meet this requirement at least four times a year.

In early 2019, Monroe began experiencing pain in his wrists which prevented him from meeting the firearm requirements. He began to see a doctor, who took him off work. He also underwent at least three surgeries.

During this period, CDCR charged Monroe with familiarity with the relative of a parolee. Monroe objected and denied the charges. The matter was set for hearing with the State Personnel Board (“SPB”).

The parties resolved this issue at a settlement hearing presided by an administrative law judge under the purview of the SPB. At the hearing, the parties decided that Monroe had retired on March 1, 2022 before receiving a Notice of Adverse Action (“NOAA”) on April 5, 2022, informing him he was fired as of April 1, 2022. Monroe received his first retirement check before he was served with the NOAA. After CDCR’s attorney verified this, it withdrew the charges.

Monroe had applied for disability retirement while employed. CalPERS had contacted CDCR by letter and asked if Monroe was in good standing. The return-to-work coordinator responded in writing on February 1, 2022 that Monroe had no negative pending actions.

At least one month after his retirement, Monroe received a letter from CDCR’s regional administrator stating that he had retired under “unfavorable circumstances.” CalPERS then denied Monroe’s application for disability retirement.

CalPERS referred the matter to the Office of Administrative Hearings (“OAH”). The administrative law judge (“ALJ”) decided in favor of CalPERS. The ALJ erred. The charges against Monroe should not have been part of his personnel file because they had been dismissed and withdrawn. In addition, OAH was not the correct agency to determine the appeal of Monroe’s disciplinary action.

CalPERS and OAH erred by allowing the withdrawn and dismissed charges to influence review of Monroe’s application for industrial disability. The ALJ allowed a Parole Agent II, Temporary Acting Employee Relations Officer, to testify that if Monroe tried to return to his employment, he would be fired. But she was not a supervisor, administrator, or regional authority and lacked authority to make such a charge. Further, there is no rule or law that allows CalPERS or OAH to relitigate an issue using the same set of facts dismissed by the authority with the sole power to decide those issues.

2. Course of Proceedings

CalPERS filed its Answer on March 26, 2024.

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The pertinent issues under CCP section 1094.5 are (1) whether the respondent has proceed without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. CCP §1094.5(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §194.5(c). Public employees have fundamental vested rights in their pension fund, which accrues on acceptance of employment. O’Connor v. State Teachers’ Retirement System, (1996) 43 Cal.App.4th 1610. This rule includes when a service-connected disability retirement is at issue.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby v. Pierno, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16. However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda v. City of Angels, supra, 20 Cal.4th at 817.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 15.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

C. Law Applicable to Disability Retirement

The California Public Employees’ Retirement Law (“PERL”) (Government Code[1] §20000 et seq.) was enacted to recognize a public obligation to state employees who become incapacitated by age or long service in public employment and its accompanying physical disabilities, as well as provide a means by which employees who become incapacitated may be replaced by more capable employees without inflicting hardship on the employee removed. §20001. CalPERS is the state agency charged with interpretation and enforcement of PERL. See Hudson v. Posey, (1967) 255 Cal.App.2d 89, 91.

Any member of CalPERS incapacitated for the performance of duty shall be retired for disability if he or she has five years of state service unless they have elected one of the service retirement allowances in sections 21076 and 21077. §21150. “Any patrol, state safety, state industrial, state peace officer/firefighter, or local safety member incapacitated for the performance of duty as the result of an industrial disability shall be retired for disability...regardless of age or amount of service. §21151. The safety employee must be incapacitated physically or mentally for the performance of his or her duties in the state service and be eligible to retire for disability. §21156.

“Disability” and “incapacity for performance of duty” means disability of permanent or extended and uncertain duration as determined by the board on the basis of competent medical opinion. §20026. For purposes of disability retirement, case law defines incapacity as “the substantial inability of the applicant to perform his usual duties.” Hosford v. Board of Administration of Public Employees Retirement System, (1978) 77 Cal.App.3d 85, 860 (quoting Mansperger v. Public Employees’ Retirement System, (1970) 6 Cal.App.3d 873, 876). Disability retirement benefits are free from federal income taxes. Pearl v. Workers’ Compensation Appeals Bd., supra, 26 Cal.4th at 193-94 (citing 26 U.S.C. §104(a)(1)).

Essentially, disability retirement boils down to two issues: (1) whether the applicant is physically or mentally incapacitated by reason of injury or sickness, and (2) if so, whether the incapacity prevents the applicant from performing the duties to which he might be assigned. See Winn v. Board of Pension Commissioners, (1983) 149 Cal.App.3d 532, 539. Because of well recognized public policy favoring the employment and utilization of physically handicapped persons, if a person is not disabled to a degree which prevents him from serving in any position in a department or agency, he should not be retired with payment of a disability pension. Id. at 540; Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 80.

For a service connection, the incapacity also must be the result of “industrial disability,” which means disability as a result of injury or disease arising out of and in the course of employment as a CalPERS member. §20046. The elements “arise out of’ and “in the course of’ employment are separate elements, and both must be satisfied in order for a job to be considered the legal cause of the injury.

A member or his employing department may file an application for his disability retirement. §21152. The application for disability retirement shall be made only (a) while the member is in state service or (b) while the member is absent on military service, or (c) within four months after the discontinuance of the state service or while on approved leave of absence, or (d) while the member is physically or mentailly incapacitated to perform duties from the date of discontinuance of state service to the time of application. §21154. CalPERS’ Board of Administration (“CalPERS’ Board”) may order a medical examination of a member to determine whether the member is incapacitated for the performance of duty. §21154.

Disability retirement is considered a temporary separation from state service. 2 CCR §446. The reinstatement of an employee from a service or disability retirement is governed by section 21190 et seq. (the “Reinstatement Law”). CalPERS’ Board may reinstate a member who has retired from service. §21190. Once placed on disability retirement, the CalPERS Board may reexamine the member to determine whether the member continues to remain incapacitated. §21193. If the member is found to be no longer incapacitated for duty, his or her disability retirement shall be canceled, he or she shall become a member of the system, and he or she shall be reinstated to the position held when they retired for disability or to a position in the same class. § 21193.

Pension statutes must be liberally construed and applied to the end that the policy established thereby is accorded proper recognition. Dillard v. City of Los Angeles, (1942) 20 Cal.2d 559, 602. In applying the provisions of disability pension law, courts must adhere to the legislative purposes of the law and limit disability retirement to those for whom it is intended. City of Huntington Beach v. Board of Administration, (1992) 4 Cal.4th 462, 472. The legislative purpose of public employee pension programs is to (1) induce persons to enter and continue in public service and (2) provide subsistence for disabled or retired employees and their dependents. Wheeler v. Board of Administration, (1979) 25 Cal. 3d 600, 605.) Disability retirement laws are intended to allow an unwilling employee to retire early in derogation of the obligation of faithful performance of duty. MacIntyre v. Retirement Board of the City and County of San Francisco, (1941) 42 Cal.App.2d 734, 736.

On February 1, 2022, CDCR’s Return to Work Coordinator submitted to CalPERS an Employer Certificate that did not state that Monroe had an adverse action pending against him and instead stated that no disciplinary matter applied to him. AR 186 (cited as B43).

On May 24, 2022, CDCR rescinded the NOAA that was the subject of the SPB appeal. AR 85 (cited as A78).

The SPB thereafter issued notice that the appeal case was closed because the “Action was withdrawn by department”. AR 86 (cited as A79).

On July 27, 2022, CDCR’s Acting Employee Relations Officer informed CalPERS after the dismissal that Monroe resigned in lieu of termination. AR 91 (cited as A84).

On August 4, 2021, CDCR served Monroe a Notice of Interview that he would be interviewed as part of an investigation related to his alleged misconduct. AR 65, 248.

On August 10, 2021, Monroe contacted CalPERS regarding a retirement allowance estimate and asked for a disability retirement application as well. AR 44.

On August 31, 2021, CDCR interviewed Monroe about allegations of his misconduct with respect to a dating relationship with a relative of his parolee, Jeremy Fifer. AR 51-57. On January 22, 2022, CDCR completed interviews of the parolee’s family. AR 58-64.

On March 3, 2022, CalPERS received Monroe’s application for service retirement pending a disability retirement. AR 16-27. He requested a service retirement date of March 1, 2022. AR 16.

CalPERS received a Employer Information for Disability Retirement form, dated February 1, 2022 and signed by Tresa Lewis (“Lewis”), CDCR’s Return-to-Work Coordinator. AR 30-31. In the employer certification section of the Employer Information for Disability Retirement form, Lewis did not note that an adverse action was pending against Monroe. AR 186.

At the OAH hearing, CDCR Parole Agent II Supervisor and Assistant Employee Relations Officer Teresa Lopez (“Lopez”) testified that Lewis’ response was error. The form should have noted that an adverse action was pending against Monroe because of CDCR’s pending investigation. AR 226, 243-47. The form should have said: “None of the above”. AR 246.

On March 10, 2022, CalPERS processed the service retirement part of Monroe’s retirement application. AR 36. He service-retired effective March 1, 2022, and began receiving a monthly service retirement allowance of $4,181.49 on April 1, 2022. AR 36-38.

On March 23, 2022, CDCR issued a NOAA dismissing Monroe from his position with CDCR, effective April 1, 2022, based on inexcusable neglect of duty, dishonesty, willful disobedience, misuse of state property, and other failure of good behavior. AR 67-79.

On March 30, 2022, CDCR held a Skelly hearing and upheld the NOAA. AR 83. On April 7, 2022, Monroe appealed to the SPB. AR 258.

On April 8, 2022, CDCR learned that Monroe had service retired. AR 258. That same day, CDCR sent Monroe a letter stating that it had learned of his retirement and determined that he had retired under unfavorable circumstances. AR 84. Lopez testified that the dismissal stands, and Monroe has no return rights. AR 260. He cannot return to his position as Parole Agent I. AR 261. If he tried to return, the NOAA would be reinstated, CDCR would pick up where it left off, and he would be dismissed. AR 260.

On April 12, 2022, Lewis updated the employer certification of the Employer Information for Disability Retirement form, marking the section that states: “the member resigned in lieu of termination” and noting March 1, 2022 as Monroe’s service retirement date. AR 31, 244.

On May 24, 2022, CDCR withdrew the SPB appeal, stating that the NOAA was rescinded. AR 85. The same day, SPB closed the appeal because CDCR had withdrawn the action. AR 87.

Lopez informed CalPERS in a July 27, 2022 email that Monroe’s discipline was not overturned as his attorney contended. An employee who knowingly retires while under investigation will be considered “dishonorably retired”. Lewis’ Employer Information for Disability Retirement form, dated April 12, 2022, stated that he resigned in lieu of termination. SPB no longer had jurisdiction of the appeal because Monroe service retired on March 1, 2022, which was prior to the effective date of the NOAA on April 1, 2022. AR 91.

On May 13, 2022, CalPERS notified Monroe that he is ineligible to apply for industry disability retirement. AR 32-33. His employment ended for reasons not related to a disabling medical condition. When an employee is separated from employment as a result of disciplinary action, or the employee enters into a settlement agreement where the employee chooses voluntarily resign in lieu of termination, and the discharge is neither the result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, termination and/or a mutual understanding of separation from employment due a pending adverse action renders the employee ineligible to apply for disability retirement. AR 32. Although his disability retirement application was canceled, Monroe would continue to receive his retirement benefits. AR 32.

The ALJ held an administrative hearing on August 14, 2022. AR 229. On September 14, 2024, the ALJ issued her proposed decision affirming Monroe’s ineligibility to apply for disability retirement. AR 514-35.

The ALJ found that Monroe was employed by CDCR as a Parole Agent I. AR 515. On August 4, 2021, CDCR’s Office of Internal Affairs gave Monroe a memorandum indicating that he would be interviewed for an allegation of misconduct. AR 517. Six days later, Monroe contacted CalPERS about a disability retirement. AR 517.

On August 31, 2022, Special Agent Jamic Hamlin (“Hamlin”) IA interviewed Monroe about the allegation that he had been in an overfamiliar relationship with a family member of his parolee from about December 1, 2020 to May 14, 2021 and that he had been dishonest with his supervisor about it. AR 517. Monroe also was dishonest in the August 31, 2022 interview. AR 518.

On January 22, 2022, Agent Hamlin completed his investigative interviews, which supported the allegation of Monroe’s misconduct. AR 518.

On March 1, 2022, prior to the conclusion of the IA investigation, Monroe signed an application for a service retirement pending a disability retirement and listed his disability as “neck bilateral upper extremities.” AR 516, 519. CalPERS processed the service retirement portion of Monroe’s application on March 10, 2022, and he was service retired effective March 1, 2022. AR 516.

On March 23, 2022, CDCR issued a NOAA to Monroe dismissing him from his employment as a Parole Agent I due to, inter alia, inexcusable neglect of duty and dishonesty, effective April 1, 2022. A Skelly hearing was held, and the dismissal was upheld. AR 519.

CDCR sent Monroe an April 8, 2022 letter stating that it had learned of his retirement, effective March 1, 2022, and determined that his retirement was “under unfavorable circumstances.” AR 520. On April 12, 2022, Lewis marked CalPERS Employer Certification form: “The member resigned in lieu of termination” and handwrote the retirement date as March 1, 2022. AR 520.

On May 24, 2022, CDCR rescinded the NOAA that was the subject of Monroe’s appeal to the SPB. AR 85, 520. Thereafter, SPB closed the appeal since the NOAA had been withdrawn. AR 520. In emails between Lopez of CDCR and Mari Cobbler of CalPERS, Loopez reported that the NOAA had not been overturned and Monroe had not resigned for medical reasons. Rather, he had resigned in lieu of termination and had received a letter of retirement “under unfavorable circumstances.” AR 520. Lopez wrote that “an employee who knowingly retires while under investigation will be considered dishonorably retired” and Monroe had no right to return to his position. AR 521. Lopez wrote that SPB no longer had jurisdiction because Monroe had retired on March 1, 2022. AR 521.

Lopez was supported by In the Matter of the Appeal by Mary Catherine Gray (“Gray”) (June 8, 1999), Precedential Decision No 99-08, SPB Case No.98-057, which states: “… a state civil service employee who resigned prior to the effective date of a dismissal could not thereafter be dismissed by his or her appointing authority.” AR 521, n. 4.

Lopez testified to the investigatory process for misconduct (AR 521), CDCR’s conclusions that Monroe committed misconduct (AR 522), the preparation and service of the NOAA, and Skelly hearing (AR 522). She testified that CDCR did not discover that Monroe had retired until April 8,2022, in part because he had not turned in his state issued ammo, baton, pepper spray, and weapon. AR 523.

Lopez also testified to the April 8, 2022 letter to Monroe that he had retired under unfavorable circumstances and that he had no return rights. AR 523. The NOAA was not overturned and just because the action was rescinded by CDCR did not mean he could have his job back. AR 523. You cannot dismiss/fire an employ who service retired, which is why CDCR rescind the NOAA because SPB no longer had jurisdiction. AR 523.

Monroe testified to his retirement and disability retirement application saying that he had no choice butt o service retire because he used almost all his benefits. AR 524. He underwent wrist surgeries in connection with his worker’s compensation claim. Although he was classified as a “dishonorable retiree”, he was eventually about to get his concealed weapon permit reinstated after appeal. AR 525.

The ALJ recited sections 21151, 21152, and 21154 (AR 525-26) and pertinent case law: Haywood v. American River Fire Protection District, (“Haywood”) (1998) 67 Cal. App. 4th 1292; Smith v. City of Napa, (“Smith”) (2004) 120 Cal. App. 4th 194; Martinez v. Pub. Employees' Ret. Sys., (“Martinez”) (2019) 33 Cal.App.5th 1156, 1166. AR 526-28 530. She also discussed CalPERS Precedential Decisions In the Matter of the Application/or Industrial Disability Retirement of Robert Vandergoot (“Vandergoot”) and In the Matter of the Application for Industrial Disability Retirement of Phillip MacFarland,(“MacFarland”). AR 527-28, 530-31.

The ALJ concluded that the holdings of Haywood and its progeny are that severance of the employer-employee relationship renders the former employee ineligible for disability retirement, so long as the termination is neither the ultimate result of disability nor preemptive of a valid disability retirement claim. AR 532. It does not matter whether termination of the relationship was caused by dismissal for cause (Haywood), a voluntary resignation and waiver of right to reinstatement (Vandergoot and McFarland), or that there was an impending ruling on a claim for disability pension that was delayed (Smith). AR 532.

Monroe was aware of the investigation into his misconduct when he was notified on August 4, 2021 that he would be interviewed by IA. AR 532. He knew of the allegations even earlier when he was interviewed by a supervisor and submitted a memorandum concerning his misconduct. AR 532. Monroe service retired pending disability retirement during an active investigation of his misconduct, just 22 days before the NOAA was issued. AR 532. It is clear from McFarland that Haywood applies even when an appeal of a NOAA is withdrawn. AR 532. Put another way, the rescission of the NOAA and dismissal of the SPB appeal has no effect on the fact that Monroe severed his relationship with CDCR under unfavorable circumstances. AR 533. Consequently, he had no right to return to CDCR. Had he tried to do so, the NOAA would have been reinstated and he would be dismissed. Return rights are a requirement under Haywood, Smith, and Vandergoot, and because Monroe resigned under unfavorable circumstances, he has no return rights. AR 534. Monroe’s service retirement is tantamount to a dismissal. AR 534. Monroe is not eligible for industrial disability retirement benefits. AR 534.

On November 21, 2023, the CalPERS Board adopted the ALJ’s proposed decision. AR 513.

Petitioner Monroe petitions for a writ of mandate directing Respondent CalPERS to reverse the ALJ’s[2] ruling that he is ineligible for disability retirement.

Petitioner Monroe’s opening brief is defective. It is 16 pages in violation of the 15-page limit of CRC 3.1113(d) and the court’s order at the August 20, 2024 trial setting conference. Monroe’s opening brief also is not paginated in violation of CRC 2.109 and 3.1110(c) and lacks a table of contents and table of authorities in violation of CRC 3.1113(f).

Monroe’s counsel also failed to comply with the court’s August 20 trial setting order. He was ordered to lodge, no later than January 27, 2025, a trial notebook with the parties’ briefs and the ALJ’s decision, the administrative record, and a memory stick of the parties’ briefs. Counsel initially lodged only the administrative record. After prodding by the Department 85 courtroom attendant, he lodged a memory stick. However, he completely failed to provide a trial notebook as ordered. He first responded that a trial notebook is not required because he did not ask for a trial. After the trial notebook was explained to him, he stated that he could not provide one in the next couple of days. Consequently, the courtroom attendant had to ask CalPERS’ counsel to submit the trial notebook, and counsel did so.

In consequence of these failures, Monroe’s counsel is ordered to read LASC 3.231, which sets out all the requirements for traditional and administrative mandamus trials, before he pursues any more mandamus cases in the Los Angeles Superior Court.

The court could overlook these procedural errors but for additional errors. It is the duty of a party to support the arguments in its briefs by reference to the exact supporting pages. Grant-Burton v. Covenant Care, Inc., (2002) 99 Cal.App.4^th 1361, 1379. A court may disregard factual contentions not supported by citation to the record. Id; Smith, Smith & Kring v. Superior Court, (1997) 60 Cal.App.4^th 573, 578. Moreover, a petitioner also is obligated to lay out the evidence favorable to the other side and show why it is lacking. The "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings." Defend the Bay v. City of Irvine, (2004) 119 Cal.App.4th 1261, 1266.

While Monroe distinguishes the cases cited by the ALJ, he does not analyze any of the relevant statutes, cases, or CalPERS precedential decisions, instead making legal conclusions without citing and applying statutory and case law. As a result, Monroe has failed to meet his burden of proof that the ALJ’s decision is not supported by the law. The FAP must be denied.

Even if the court were obligated to address the merits, the FAP still would be denied.

Monroe argues that the SPB was given the sole power to determine appeals of disciplinary action. Based on the CDCR’s investigatory report, charges were brought against Monroe for unfamiliarity with the relative of a parolee. Monroe timely requested an appeal hearing before the SPB. Pet. Op. Br. at 5.

The first matter held by the SPB was a settlement conference. If the parties are unable to settle at the settlement conference, the ALJ will schedule a hearing. During the conversation, a question was raised about the date Monroe was served with the NOAA. The attorney for CDCR verified that Monroe had retired on March 1, 2022, and that the NOAA was delivered to him at his home on April 5, 2022. The CDCR attorney then informed the ALJ that all charges were withdrawn. Pet. Op. Br. at 5-6.

Monroe contends that CalPERS and the ALJ committed reversable error by allowing the withdrawn and dismissed charges and their circumstances to invade the ALJ’s review of his application for industrial disability retirement. There exists no rule or law that allows the CalPERS or OAH to re-litigate an issue using the same exact set of circumstances already litigated and dismissed by the proper authority. Nevertheless, the ALJ proceeded to determine the issues related to the withdrawn charges and seemed to effectively overrule the CDCR (the employing agency that withdrew the charges), the lawyer representing CDCR, and the SPB (whose job it was to determine the facts), and the ALJ did so without one witness or even the investigator testifying. Pet Op. Br. at 7.

The ALJ’s decision to include the circumstances of the charges and using the dismissed charges was error. The attorney for CalPERS attempted to introduce the circumstances surrounding the charges at the hearing and Monroe’s attorney objected. The ALJ overruled the objection and her decision permitted CalPERS to base its case on the circumstances of the charges that had been withdrawn and dismissed. The ALJ had no authority to hear the charges. The ALJ’s sole authority was to determine if Monroe was disabled at the time he applied for disability retirement or any impediment to that disability application at the time it was made. Pet. Op. Br. at 8, 10.

Moreover, Assistant Employee Relations Officer Lopez was only an assistant as no true Employee Relations Officer had been hired. Lopez admitted at the hearing that she was only a Parole Agent II Assistant Supervisor and had no management authority to speak for CDCR or espouse CDCR policy. Pet. Op. Br. at 13.

This argument is untenable. Monroe is correct that the SPB had jurisdiction to determine the validity of Monroe’s discharge and the ALJ did not. The ALJ only had authority to determine Monroe’s eligibility for disability retirement. But she did not purport to litigate the underlying discharge. Lopez testified to the investigatory process for misconduct (AR 521), CDCR’s conclusions that Monroe committed misconduct (AR 522), the preparation and service of the NOAA, and the Skelly hearing (AR 522). She did not testify to the validity of the charges and the ALJ made no finding on them. The ALJ merely received testimony concerning the severance of Monroe’s employment relationship and his employment status with CDCR. Haywood mandates that the ALJ review this information. Disability retirement is for those unable to work, not the unwilling. Thus, the ALJ did not err in inquiring about the existence of charges, which reflected on whether Monroe was unwilling to work because he knew he would be terminated.

Relatedly, Monroe argues that the ALJ allowed Lopez to testify, over objection that, if Monroe were to attempt to return to his employment, he would be fired. Lopez also informed CalPERS on July 27, 2022 that Monroe had resigned in lieu of termination. Lopez was not a supervisor, administrator, or regional authority, and had no authority to make such a statement. She was not even the Return-to-Work Coordinator. Once charges are withdrawn and dismissed, the employee is free to return to work. Pet. Op. Br. at 9.

The ALJ neglected to mention that the Return-to-Work Coordinator informed Monroe that he had exhausted his time off for his injury that began on April 19, 2019 and needed to retire to continue to receive any money to survive pending his disability retirement. This prompted Monroe to retire while his industrial disability application was pending. The cited cases show that a return to work is based on the circumstances of the NOAA. Even if Monroe decided to return to work, the same charges could never be brought again because they were withdrawn and dismissed. CDCR’s right to bring them again would be time-barred by section 3303 of POBR. Pet. Op. Br. at 9, 10.

The short answer is that Lopez’ testimony about what would happen if Monroe tried to return to work was not received to show that event could happen, but to emphasize that his severance was permanent. As a result, any POBR impact is irrelevant.

2. The Decision That Monroe Retired Under Unfavorable Circumstances and Is Not Eligible for Disability Retirement Was Correct

Monroe presented evidence that he had several wrist operations within the prior year due to disability. Additionally, CDCR knew Monroe had applied for disability more than three months before serving him with the NOAA.

Monroe argues that once the charges were withdrawn without a statement of later intent, they were gone and could not be revived. If CDCR had conditioned withdrawal of the charges on their reinstatement if Monroe returned to work, that possibly would be a viable argument. But CDCR’s withdrawal and dismissal of charges carried no conditions and no agreements. Pet. Op. Br. at 10-11.

Monroe argues that everything depends on a NOAA, which states that the employee did something wrong working in State service and this is the discipline we are imposing. The employer cannot impose discipline after the employee has left the service without having informed him or her prior to leaving service. CDCR could not do so because Monroe had already retired, applied for his disability, and had received his first retirement check. Pet. Op. Br. at 12.

CalPERS did its due diligence and sent CDCR a request for notice of any disciplinary action pending. Return-to-Work Coordinator Lewis checked the box stating that Monroe was applying for disability in good standing. Monroe was sent a letter after he had retired telling him his retirement was “Under Unfavorable Circumstances”. This cannot legally be done after Monroe retired without previous disciplinary action or a NOAA. If the letter was sent before Monroe retired, CDCR might have had an argument, but the letter was sent clearly after his retirement when Monroe had already applied for industrial disability retirement. Pet. Op. Br. at 12.

The ALJ mentioned, but quickly moved past, the document CDCR sent to CalPERS stating that Monroe was in good standing. CDCR, and likely the ALJ, seemed to believe that since CDCR served Monroe with the NOAA after he retired, this documentary error can be remedied. But it cannot. Haywood and its progeny based their holdings on the NOAA, the employee’s timely receipt of the NOAA, and what the employee did after he received the NOAA. In essence, they stand for: “No Cheating”. There was none here. Pet Op. Br. at 11.

The ALJ stated that, on April 12, 2022, after Monroe had retired, the Return-to-Work Coordinator Lewis marked on the CalPERS Certification form: “The member resigned in lieu of termination”. For CDCR to say that Monroe retired in lieu of termination requires that Monroe abandon his right to be heard and call witnesses. This statement was a lie, the form clearly contravenes what Lewis said in February of 2022 that Monroe was in good standing. Pet. Op. Br. at 12-13.

CDCR and the ALJ want the CalPERS Board to make new law eviscerating the NOAA as a condition of disciplinary action and allow the employing department to make up reasons for disciplinary action. If that were the case, every retired CalPERS member who retires could be served a NOAA at any time after retirement and be forced to defend charges that may have been brought months, even years after retirement. No one could apply for disability retirement in the year prior to actual retirement because a disability retirement with charges known or unknown pending would be fatal to any recovery. Pet. Op. Br. at 11-12.

Monroe argues that, on July 19, 2013, MacFarland was served with his NOAA while still employed, filed his request for a hearing before the SPB but withdrew his appeal before the hearing. Two days after July 19, 2013, MacFarland gave notice that he was retiring effective July 23, 2013. The SPB dismissed the appeal based upon MacFarland’s withdrawal. Monroe distinguishes MacFarland on the basis that MacFarland, like the other cases, was served with the NOAA before he retired. Two days after July 19, 2013, MacFarland gave notice that he was retiring effective July 23, 2013. Monroe was not served with the NOAA until 40 days after he retired. Monroe’s injury was service related. Monroe filed his appeal and was pursuing that appeal when the Department of Corrections dismissed the charges. Pet. Op. Br. at 14.

Monroe distinguishes Haywood, Smith, and Vandergoot as cases where the employee terminated for cause after receiving his NOAA and Martinez as a case where the employee received a NOAA but settled termination for cause and agreed never to return to that employment. Pet. Op. Br. at 14.

The case law demands a causal relationship between the employer’s present intent to administer discipline through a NOAA and the impediment to a disability retirement. In each case, there was some charge that either had been admitted, a compromise was achieved, the employee walked away from his or her right to fight the charge, or the NOAA was served and not answered or objected to before the proper authority. In this case, there is no causal relationship between Monroe’s NOAA and a disability retirement. No NOAA exists because it has been dismissed and withdrawn. The ALJ cannot review circumstances that no longer exist. Pet. Op. Br. at 15.

CaLPERS’ opposition points out that the legislative intent underlying the disability retirement laws presupposed a continuing, albeit abated, employment relationship. A disability retirement is not permanent; it does not permanently sever the employment relationship. Willis v. State of California, (1994) 22 Cal.App.4th 287, 292. Disability retirement is considered a temporary separation from state service. 2 CCR §446.

The reinstatement of an employee from a service or disability retirement is governed by section 21190 et seq. (the “Reinstatement Law”). CalPERS’ Board may reinstate a member who has retired from service. §21190. Once placed on disability retirement, the CalPERS Board may reexamine the member to determine whether the member continues to remain incapacitated. §21193. If the member is found to be no longer incapacitated for duty, his or her disability retirement shall be canceled, he or she shall become a member of the system, and he or she shall be reinstated to the position held when they retired for disability or to a position in the same class. § 21193. See Haywood, supra, 67 Cal.App.4^th at 1296.

As noted in Gray, a disability retirement, unlike a resignation or a dismissal, is a temporary separation from employment and the state may reinstate the employee in the event he or she is no longer incapacitated. AR 100-01.

“…[T]here is an obvious distinction in public employment retirement laws between an employee who has become medically unable to perform his usual duties and one who has become unwilling to do so. Disability retirement laws address only the former. They are not intended to require an employer to pension off an unwilling employee in order to maintain the standards of public service. Nor are they intended as a means by which an unwilling employee can retire early in derogation of the obligation of faithful performance of duty. In addition, while termination of an unwilling employee for cause completely severs the employer employee relationship, disability retirement laws contemplate the potential reinstatement of that relationship if the employee recovers and no longer is disabled. 67 Cal.App.4^th at 1296 (emphasis added).

Thus, the potential reinstatement of the employment relationship is a necessary requisite for disability retirement. See §21156(a)(2). This necessary requisite is lacking where the employee severs their employment relationship pursuant to a termination for cause, a resignation through a settlement or a formal resignation notice to the employer, or a resignation through a service retirement. Opp. at 6. Monroe does not disagree with these principles.

CalPERS cites Haywood as establishing a general rule that a termination for good cause, which (1) is not the ultimate result of a disabling medical condition or (2) preemptive of an otherwise valid claim for disability retirement, extinguishes the right to disability retirement. The rule established in Haywood is not limited to dismissals for cause. This rational applies to permanent separations from service by a resignation. “A resignation is in the nature of a notice of the termination of a contract of employment,” and like a removal for cause results in a permanent separation from state service.” Collins v. County of Los Angeles, (1976) 55 Cal.App.3d 594, 597. Any distinction between severance of employment relationship based on resignation and a termination for cause is immaterial. Opp. at 7.

While Vandergoot is distinguishable for the reasons stated by Monroe, CalPERS points out that the CalPERS Board held in this precedential decision that Haywood may be applied in the absence of an actual dismissal for cause. AR 110. “In deciding this case, bright line distinctions need not be made in determining when and under what circumstances a resignation becomes a termination for cause for purposes of applying Haywood.” AR 111. Haywood makes clear that a necessary prerequisite for disability retirement is the potential replacement of the employment relationship with the employer if ultimately it is determined that the member is no longer disabled. AR 111. Because Vandergoot’s employment relationship had been severed and the stipulated settlement locked him out from return, he could not have returned following a finding that he was no longer disabled. AR 111. He would have no employer who could require him to undergo a medical examination under section 21192 and it would not be possible to reinstate him under section 21193. AR 112. The requirements for a disability pension could not be satisfied. AR 112.

In Martinez, supra, 33 Cal.App.5^th at 1156, the court reviewed Vandergoot (id. at 1167-68), noted that the CalPERS Board’s interpretation of PERL is accorded great weight unless clearly erroneous (id.), and found Vandergoot’s reasoning to be eminently logical: “resignation in these circumstances does indeed appear to be tantamount to a dismissal for purposes of applying the Haywood criteria.’” (ibid.).

CalPERS argues (Opp. at 9) that although Haywood and Smith are distinguishable because the employees terminated for cause, and Vandergoot and Martinez are distinguishable because the employees were facing a disciplinary process prior to their resignations, an actual or pending termination is not required for Haywood to apply. Pursuant to Haywood, Vandergoot, and Martinez, an employee’s severance of the employment relationship and relinquishment of his return rights bars an employee from applying for disability retirement. Martinez, supra, 33 Cal.App.5^th at 1176.

In MacFarland, MacFarland resigned from his position two days after receiving the NOAA by notifying CDCR that he was retiring, would not return to work per his doctor’s orders, and would file for disability retirement. AR 122. CDCR issued a letter stating that it had reviewed the circumstances of his retirement and considered him to be separated from employment under unfavorable circumstances. AR 122. MacFarland filed for service-pending disability retirement with CalPERS and filed a withdrawal of appeal with SPB, noting that he service-retired. AR 123.

CalPERS determined that MacFarland’s employment relationship with CDCR had been permanently severed and thus he was ineligible to apply for disability retirement. AR 122. MacFarland appealed and argued that, because his resignation letter pre-dated the NOAA’s effective date of termination, the NOAA did not become effective and he had not been terminated for cause under Haywood. AR 123. A CDCR representative testified that MacFarland was permanently separated from employment and if he was ever re-hired, the NOAA would immediately be enforced, and he would be terminated. AR 124.

“The record is clear that applicant’s employer made its decision to terminate him on or before it issued the July 17, 2013 NOAA, advising that his employment would be terminated on July 23, 2013. Applicant service-retired from his employment three days before the effective date of his termination for cause. Had applicant not service-retired on July 23, 2013, his employment would have been terminated on July 26, 2013. The evidence is persuasive that should applicant attempt to reinstate with his employer, the NOAA would be enforced and he would be barred from reinstatement. Additionally, applicant waived any appeal rights and would be barred from seeking to overturn the NOAA.” AR 124.

The only differences between MacFarland and Monroe is that MacFarland received his NOAA before his resignation and retirement – albeit it was not effective until after his retirement – and MacFarland withdrew his SPB appeal whereas CDCR withdrew the appeal. AR 85. Monroe’s entire legal position is based on the need for a NOAA before he service-retired. Does this make a difference?

CalPERS argues that Monroe’s service retirement was akin to a resignation, resulting in a complete severance of his employment relationship with CDCR and barring his eligibility for disability retirement. He was aware of the investigation into his misconduct and service retired 22 days before he was served the NOAA. As noted by CDCR, Monroe separated from employment and the separation was under unfavorable circumstances. AR 84. The recission of the NOAA and withdrawal of the SPB appeal does not negate this fact. As CDCR representative Lopez testified, Monroe’s employment relationship is severed, and he has no return rights. AR 260-61. Opp. at 11.

The court agrees with the ALJ, who concluded that the holdings of Haywood and its progeny are that severance of the employer-employee relationship renders the former employee ineligible for disability retirement, so long as the termination is neither the ultimate result of disability nor preemptive of a valid disability retirement claim. AR 532. It does not matter whether termination of the relationship was caused by dismissal for cause (Haywood), a voluntary resignation and waiver of right to reinstatement (Vandergoot and McFarland), or that there was an impending ruling on a claim for disability pension that was delayed (Smith). AR 532.

Monroe was aware of the investigation into his misconduct when he was notified on August 4, 2021, and that he would be interviewed by IA. AR 532. He knew of the allegations even earlier when he was interviewed by a supervisor and submitted a memorandum concerning his misconduct. AR 532. Monroe service retired pending disability retirement during an active investigation of his misconduct, just 22 days before the NOAA was issued. AR 532. It is clear from McFarland that Haywood applies even when an appeal of a NOAA is withdrawn. AR 532. Put another way, the rescission of the NOAA and dismissal of the SPB appeal has no effect on the fact that Monroe severed his relationship with CDCR under unfavorable circumstances. AR 533. Consequently, he had no right to return to CDCR. Had he tried to do so, the NOAA would have been reinstated and he would be dismissed. Return rights are a requirement under Haywood, Smith, and Vandergoot, and because Monroe resigned under unfavorable circumstances, he has no return rights. AR 534. Monroe’s service retirement is tantamount to a dismissal. AR 534. Monroe is not eligible for industrial disability retirement benefits. AR 534.

Monroe’s attempt to distinguish his case from the cited case law on the basis that he did not formally resign and instead retired is ineffectual because his service retirement is a permanent separation. See Gray at AR 101, n. 9 (under 2 CCR section 446, disability retirement is a temporary separation and service retirement is a permanent separation).

Monroe’s argument that a NOAA was required before his service retirement also is untenable. CDCR deemed his service retirement to be a resignation in lieu of termination (AR 31) and issued a letter finding him to have separated from employment under unfavorable circumstances (AR 84). Monroe’s retirement under the cloud of discipline constituted a complete severance of the employment relationship, eliminating the prospect of reinstatement of his employment relationship with CDCR. Thus, his service retirement is no different than the formal resignations of Vandergoot and MacFarland.

The fact that CDCR caused SPB’s dismissal of Monroe’s appeal also is of no moment, as shown by the precedential decision of In the Matter of Accepting the Application for Industrial Disability Retirement of Charles Therrien, Respondent and California Department of Forestry and Fire Protection, Respondent, (“Therrien”) Case No. 2018-0045. AR 132-44. There, CalPERS concluded that Therrien – who service retired a day prior to the effective date of the NOAA and whose appeal was dismissed by SPB upon his employer’s request because he permanently separated from employment pursuant to service retirement – was barred from applying for disability retirement because his employment relationship was severed, and he did not have reinstatement rights. AR 140-41. The fact that the employer sought dismissal of the SPB appeal, and Therrien opposed dismissal, was of no moment. AR 139-40. His employment relationship still had been severed and was irrevocable once the appeal was dismissed. AR 140. Therrien also failed to exhaust his judicial remedies by seeking mandamus. AR 140. The same is true for Monroe.

Finally, Monroe’s argument that the ALJ’s decision eviscerates the NOAA as a condition of disciplinary action and allows the employing department to serve every retired member of CalPERS with a NOAA and force him or her to defend charges that may have been brought months, even years, after retirement is addressed by the facts that (a) the employee must know that there is an active investigation of his or her misconduct at the time of the disability service retirement application, (b) before any disability retirement, the employer must advise CalPERS in the Employer Information for Disability Retirement form of the employee’s retirement under unfavorable circumstances, and (c) the other Hayward factors do not apply that the disability retirement application (1) is not the ultimate result of a disabling medical condition or (2) preemptive of an otherwise valid claim for disability retirement, extinguishes the right to disability retirement.

As Lopez informed CalPERS in a July 27, 2022 email, an employee who knowingly retires while under investigation will be considered “dishonorably retired”. That is Monroe and he is ineligible for disability retirement.

The FAP is denied. CalPERS’ counsel is ordered to prepare a proposed judgment, serve it on Monroe’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for March 13, 2025 at 9:30 a.m.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] For convenience, the court will refer to the ALJ’s decision and not the CalPERS’ Board’s adoption of it.