Davis v. Lausd Personnel Com'n, B188435.

Citation62 Cal.Rptr.3d 69,152 Cal.App.4th 1122
Decision Date28 June 2007
Docket NumberNo. B188435.,B188435.
CourtCalifornia Court of Appeals
PartiesEnnis R. DAVIS, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT PERSONNEL COMMISSION et al., Defendants and Respondents.
62 Cal.Rptr.3d 69
152 Cal.App.4th 1122
Ennis R. DAVIS, Plaintiff and Appellant,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT PERSONNEL COMMISSION et al., Defendants and Respondents.
No. B188435.
Court of Appeal, Second District, Division 1.
June 28, 2007.

[62 Cal.Rptr.3d 71]

Law Office of Audrey Y. Ripley and Audrey Y. Ripley, Los Angeles, for Plaintiff and Appellant.

Liebert Cassidy Whitmore and Pilar Morin, Los Angeles, for Defendants and Respondents.

MALLANO, Acting P.J.


In 2001, plaintiff was demoted from his position of employment with the Los Angeles Unified School District (LAUSD). Before learning of the demotion, plaintiff commenced a disability leave for reasons unrelated to his employment. Due to his illness, plaintiff has remained unavailable for work ever since.

In 2003, the Personnel Commission of the LAUSD (Commission) found that the demotion was wrongful and ordered the LAUSD to reinstate plaintiff to his prior position, effective as of the date of the demotion. The Commission also concluded that plaintiff was not entitled to full back pay in light of his unavailability for work.

The primary question on appeal is whether an employee who is wrongfully demoted is entitled to full back pay for a period when he was not available for work due to a nonindustrial illness. We conclude that, because back pay is a makewhole remedy, intended to restore the employee to the financial situation that would have existed but for the employer's wrongful conduct, an employee is not entitled to earnings he or she would not have received in any event. We also conclude that the employee in this case was not entitled to immediate reinstatement given that he was medically unable to return to work.

I
BACKGROUND

In 1976, plaintiff Ennis Davis began employment with the LAUSD as a programmer

62 Cal.Rptr.3d 72

trainee. In 1999, he became the director of the information systems branch.

In July 2001, Davis's immediate supervisor received an anonymous interoffice memorandum accusing Davis of "generalized wrongdoing." The matter was referred to the general counsel's office for investigation. An attorney interviewed Davis's staff. In the interim, Davis was relieved of his duties and assigned to a new work location.

On October 26,2001, Davis met with one of his superiors and a representative from the personnel department to discuss the charges against him, namely, whether he had falsified time cards, allowed a subordinate to work two jobs, and failed to pay for personal calls made on his LAUSD cell phone.

On November 8, 2001, Davis met with the same individuals. He was presented with a notice of unsatisfactory service, accusing him of incompetence, inefficiency, insubordination, dishonesty, dereliction of duty, violation of written rules, behavior tending to injure the public service, and concealment of material facts. After the meeting, Davis went home. He also went to see his physician, who placed him on disability. Davis has been disabled since then and has not returned to work.

On appeal, Davis does not identify or describe his illness or disability. The record indicates that, at some point before the November 8, 2001 meeting, he had experienced chest pains, shoulder cramps, stomachaches, and neck pain. Davis had a "complete physical" and a battery of tests. The doctor did not find anything "physically wrong" with him and recommended that he undergo a psychiatric evaluation.

By certified letters sent to Davis's address on November 8 and November 28, 2001, the LAUSD notified him of a "Skelly hearing" (see Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774), at which he could respond to the charges against him. Davis did not respond to the letters, although he had replied to other certified mail sent to the same address. The LAUSD assumed that Davis did not want a hearing. Months later, the letters were returned, stamped "Attempted Not Known."

On December 11, 2001, the LAUSD presented a statement of charges to the LAUSD Board of Education, repeating the accusations made against Davis at the November 8, 2001 meeting. The board adopted the charges and demoted Davis to senior software engineer, a lower paying job, effective December 12, 2001. The LAUSD promptly informed Davis of the demotion by letter.

Davis made a workers' compensation claim, which was denied on the ground that his illness was not work related. He did not seek further review of the denial.

In February 2003, Davis exhausted his paid leave benefits. The LAUSD notified him by letter that (1) he could request unpaid leave in six-month increments, not to exceed 18 months, and (2) the failure to make such a request would result in his "separation" from employment. Davis decided not to request unpaid leave. On or about February 8, 2003, he was effectively laid off and was placed on a "reemployment list" for a period of 39 months. (See Ed.Code, § 45195; Com. rule 800(K), (M); section references are to the Education Code unless otherwise indicated.) If, during the 39-month period, Davis became able to assume the duties of his prior position, he would be reemployed in that position, his break in service would be disregarded, and he would be fully restored as a permanent employee. (See § 45195.) Eventually, Davis "cashed out" his retirement benefits, resulting in taxes and penalties for early withdrawal.

62 Cal.Rptr.3d 73

Davis filed a timely appeal of his demotion with the Commission. A hearing officer was appointed. The hearing took place over several months. On February 14, 2003, the hearing officer issued a "Recommended Decision" detailing the evidence related to the charges and proposing that the Commission find in Davis's favor. In general, the hearing officer concluded that the evidence did not support the charges. She also found that, to the extent Davis's superiors believed he had engaged in wrongdoing, they did not comply with Commission rules requiring that he be afforded progressive discipline.

At a meeting on May 21, 2003, the Commission delayed a final decision on the appeal and allowed the parties to submit questions and arguments to the hearing officer concerning appropriate remedies. On June 30, 2003, the hearing officer issued a "Response to Questions/Arguments," recommending that Davis receive certain types of relief.

By resolutions adopted on July 9 and July 30, 2003, the Commission reviewed the findings and recommendations of the hearing officer. Although the Commission did not comment on the accuracy of the findings, it: (1) rescinded the demotion; (2) restored Davis to his prior position effective as of the date of the demotion; (3) held that Davis's separation from employment, due to the length of his absence, was not a bar to reinstatement; (4) ordered that Davis be paid "the difference between the amount of pay he should have received at the lower classification and the pay he should have received had he not been demoted ..., including differences in sick leave pay, vacation pay, and any other benefits"; (5) rejected Davis's request that he be awarded medical costs and damages for emotional distress; (6) directed that Davis be given a letter explaining to financial institutions the matters at issue in the proceedings; and (7) ordered that a statement be read or given to the staff regarding Davis's return to his prior position.

On October 17, 2003, the LAUSD paid Davis an additional $24,324 in back pay, consisting primarily of vacation pay that was based on his higher, predemotion rate of pay. There was no change in sick leave pay or other benefits. Davis did not provide the LAUSD with a statement from his treating physician releasing him to return to work. He was not reinstated.

On September 4, 2003, Davis filed the first of two petitions for a peremptory writ of mandate (Davis v. Personnel Commission of the Los Angeles Unified School District (Super.Ct., L.A.County, 2003, No. BS085478)). Davis alleged that the LAUSD had not reinstated him or paid him the salary he would have received if he had continued to work in his prior position. The superior court granted the petition in part, commanding the Commission to clarify its decision: (1) with respect to whether Davis was entitled to be reinstated "despite his continuing disability"; (2) specifying the amounts awarded to Davis, if any, "necessary to effect a just settlement of the [administrative] appeal" (quoting § 45307); and (3) specifying the amount of "accumulated leave," if any, restored to Davis (citing § 45192).

On January 7, 2005, the Commission filed a return to the writ, addressing each of the superior court's inquiries in turn. First, Davis remained eligible for reinstatement to his prior position if he demonstrated at any time before May 9, 2006, that he was fit for duty, and he complied with reemployment procedures. In particular, Davis needed to present "medical clearance" from his treating physician that he could return to his prior position; if Davis was medically restricted in the performance of his regular job duties, the matter would be reviewed to determine

62 Cal.Rptr.3d 74

essential job functions and reasonable accommodation. Second, although the Commission had paid Davis $24,324 in additional back pay, it denied, as unwarranted or unauthorized, his request for attorney fees and costs, damages for emotional distress, repayment of medical costs, restoration of benefit time, and reimbursement for taxes and penalties incurred as a result of his early withdrawal of retirement benefits. Third, no medical leave was restored.

On January 25, 2005, Davis filed his second petition, which was assigned to the same trial judge. The petition named the Commission, the LAUSD, and the LAUSD's personnel director as defendants. Davis alleged he was entitled to: (1) immediate reinstatement notwithstanding his inability to return to work; (2) full back pay from the date of the demotion based on his predemotion rate of pay, less any...

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