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Victor Gonzalez v. Department of Corrections and Rehabilitation et al

May 5, 2011

VICTOR GONZALEZ, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. (Super.Ct.No. CIVRS811334)

The opinion of the court was delivered by: McKinster Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

Victor Gonzalez appeals an order denying a petition for a writ of mandate directing the California Department of Corrections and Rehabilitation (CDCR or the Department) to file an application for retirement disability benefits on his behalf after he became disabled for his functions as a correctional officer as a result of an on-the-job injury. The trial court held that the Department had no such obligation, but could instead medically demote Gonzalez to an available position for which he was qualified and not disabled, even though it was an entry-level clerical position which paid much less than Gonzalez's position as a correctional officer. The court held that the Department had reasonably determined that it could not accommodate Gonzalez's disability in his position as a correctional officer.

The issue addressed in this appeal is a perceived conflict between sections 19253.5 and 21153 of the Government Code.*fn1 However, as we will explain, there is no conflict between the two. Consequently, we will affirm the judgment.

PROCEDURAL HISTORY

Gonzalez filed his petition for writ of mandate on November 10, 2008. After briefing and oral argument, the trial court took the matter under submission and issued its statement of decision, which is summarized below.

Judgment was entered on November 2, 2009. Gonzalez filed a motion for new trial, which was denied on January 25, 2010. Gonzalez filed a timely notice of appeal.

FACTS

In reviewing denial of a petition for writ of mandate, we accept the trial court's factual findings if those findings are supported by substantial evidence. (California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 375.) In its statement of decision, the trial court found the following facts, all of which are supported by substantial evidence.

Correctional Officer Victor Gonzalez injured his knee on March 14, 2007, while at work. On March 17, 2008, his treating physician, Dr. Wall, reported that Gonzalez's condition was permanent and stationary and that Gonzalez was unable to return to work as a correctional officer because he could not perform normal activities required in that position, including running, "take downs," kneeling, and squatting or standing for long periods of time.

On April 2, 2008, after receiving Dr. Wall's report, the Department held a meeting with Gonzalez to discuss reasonable accommodations which could be made. The options included medical demotion to an office assistant position for which Gonzalez qualified or disability retirement, for which Gonzalez would have to apply on his own.

On April 4, 2008, the Department sent Gonzalez a letter explaining his options. On April 11, 2008, Gonzalez met with Cynthia Hudson, the return to work coordinator for the California Institution for Men (CIM), where Gonzalez was employed. She explained that his correctional officer position could not be modified to accommodate his work restrictions and that the Department would not apply for ...


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