Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks and Gregory H. Lewis, Judges. (Super. Ct. No. 30-2010-00361138)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Affirmed. Request for judicial notice. Granted.
Plaintiff Valerie Mooney appeals from a judgment entered after the trial court granted the motion of her former employer, defendant County of Orange (the County), for summary adjudication on her causes of action for violations of Government Code sections 31725 and 31721, subdivision (a). (All further statutory references are to the Government Code unless otherwise specified.) Mooney contends the trial court erroneously interpreted these sections in concluding neither applied to the County.
We affirm. Mooney's claims fail as a matter of law because the undisputed facts show that Mooney was neither "dismissed" by the County because of a disability, within the meaning of section 31725, nor "separate[d]" from employment by the County, within the meaning of section 31721, subdivision (a). Both of these statutes refer to duties of an employer which are triggered by its actions. We hold that in the context of these statutes, "dismissed" and "separate" share the same meaning.
In November 1990, Mooney was hired by the County as a deputy probation counselor. On June 22, 2004, while pushing a linen cart, Mooney suffered a lumbar disc injury and took a two-month medical leave. Shortly after she returned from medical leave, on September 20, Mooney "sustained a second aggravating injury" and took another two-month medical leave.
Beginning in late November 2004, Mooney worked without restrictions. From March 12, 2005 through May 25, 2006, she was "placed on a restriction of working no more than 40 hours per week."
On May 30, 2006, Mooney was informed that the County was no longer able to accommodate her work restriction, and, consequently, she was not cleared to work. On June 16, Mooney requested "an immediate ADA [(Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.))] meeting." An interactive meeting was held on June 22. In July, Mooney was "given a job assignment performing clerical duties."
In October 2006, Mooney was examined by Arthur Leupold, M.D., who was "the Workers' Compensation Orthopaedic Agreed Medical Examiner." On January 3, 2007, the County received notice of the following permanent work restrictions for Mooney: "Based on an ME report of Dr. Leupold dated 10/24/06, Ms. Mooney is: precluded from heavy lifting and repeated bending or stooping." On January 4, the County's human resources administrative manager told Mooney that the County could not accommodate Mooney's permanent work restrictions within her classification of deputy juvenile correctional officer II. Mooney was told she was not to return to work until a final decision was made by "Executive Management regarding accommodation of her permanent work restrictions."
Thereafter, Mooney "periodically attended ADA meetings" with the County's administrative manager, Sheetal Chavis. The County engaged in an interactive meeting with Mooney on February 5, 2007. On February 22, a request for assistance was sent out to the "HR Leadership Forum" on behalf of Mooney, which enabled all of the County's agencies to view her qualifications and compare them with the qualifications required for open positions. One of the County's departments expressed interest in Mooney, but other candidates were selected for its open positions.
On May 1, 2007, Mooney filed an application for disability retirement with Orange County Employees Retirement System (OCERS), wherein she alleged that her disability prevented her from meeting the minimum physical qualification standard for her classification of deputy juvenile correctional officer II. Mooney stated in a declaration that she applied to OCERS for disability retirement "[d]ue to [her] need for income." The County did not volunteer to assist her in that effort. Mooney asked Chavis for assistance but was told the County "would not apply and it would be a 'long process.'" During the disability retirement application process, Mooney continued to engage in the interactive process with Chavis, and the County continued to seek a reasonable accommodation for Mooney. An interactive meeting was held on September 14, 2007, at which time Mooney stated she would not be willing to take any position unless it allowed her to keep her sworn status and safety retirement benefits. At each subsequent interactive meeting with the County, Mooney reiterated her unwillingness to accept a position that would not allow her to keep her sworn status and safety retirement benefits.
At an unspecified point in time, Mooney stated she repeatedly told Chavis that she was "ready and willing to do scheduling, clerical, and other assignments of the type [she] had previously been performing in the Probation Department. [She] also told Ms. Chavis that [she] was capable of meeting clients and conducting interviews, writing reports, and data entry." According to Mooney, Chavis did not provide her with "answers, and periodically inquired as to the status of [her] claim for disability retirement benefits."
In February 2008, Mooney was advised by OCERS that her application for disability retirement was denied for "insufficient evidence of permanent incapacity." OCERS's physician stated Mooney was able to do her job, "but should avoid heavy lifting as a 'prophylactic' measure." Mooney appealed the denial of the application; she did not receive assistance from the County in appealing that denial, although Chavis asked her about the status of her appeal.
Interactive meetings between the County and Mooney occurred on April 7, 2008, November 5, 2008, and August 25, 2009. OCERS denied Mooney's appeal on December 1, 2009. An interactive meeting was held on December 18, 2009. Chavis told Mooney that she had been advised by the County's counsel that "it was not economical to accommodate [Mooney]." Chavis acknowledged that, in the past, employees in similar circumstances had been accommodated.
On January 8, 2010, the County offered Mooney the position of office assistant at the North County Field Services Office, which paid $17.90 an hour. The position was "within [her] work restrictions." Mooney rejected the position "because the pay and benefits were substantially less." (The pay offered was $10 an hour "below [her] pay level.") In a letter later dated January 26, 2010, Mooney explained she rejected the position because it did not allow her to keep her original title or same rate of pay.
An interactive meeting was held on April 30, 2010. On June 23, 2010, a request for assistance was sent to the HR Leadership Forum on behalf of Mooney, again enabling all of the County's agencies to view her qualifications and compare ...