The opinion
Filed 10/25/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CARI MCCORMICK,
Plaintiff and Appellant,
A154236
v.
CALIFORNIA PUBLIC EMPLOYEES’ (Lake County
RETIREMENT SYSTEM, Super. Ct. No. CV 416903)
Defendant and Respondent.
Plaintiff Cari McCormick worked as an appraiser for Lake County. She
developed certain medical symptoms, including pain, fatigue, and dizziness, that seemed
to be caused by her office environment. After her employer denied her request to work in
a different location, she applied for disability retirement. Adopting the decision of an
administrative law judge (ALJ), the Board of Administration (Board) of the California
Public Employees’ Retirement System (CalPERS) denied her application on the basis
that her condition did not prevent her from performing her job duties at a theoretical
different location. McCormick filed a petition for a writ of administrative mandate,
which the trial court denied.
On appeal, McCormick claims that the trial court’s decision must be reversed
because it applied the wrong legal standard. We agree. We hold that employees are
eligible for CalPERS disability retirement under Government Code1 section 21156 when,
due to a disability, they can no longer perform their usual duties at the only location
where their employer will allow them to work, even if they might be able to perform
1
All further statutory references are to the Government Code unless otherwise
noted.
1
those duties at a theoretical different location. We therefore reverse and remand for
further proceedings.2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
McCormick began working for Lake County in 2002. Her primary job duties
involved appraising real property for property-tax purposes. She performed most of her
work in an office in the Lakeport courthouse, although she sometimes conducted field
inspections.
In 2010, McCormick started to experience physical pain throughout her body and
feel “constantly fatigued.” Her symptoms worsened at the end of 2011, and on April 10,
2012, she could not finish a full day of work. On the previous day, the building had to be
evacuated because of fumes caused by the roof being tarred. A consistent “horrible
smell” persisted, and other people complained as well. McCormick felt much better if
she was at home or outside, and she began working only half days.
When McCormick originally sought medical treatment, she was led to believe that
the problem was hormonal. In May 2012, she had a hysterectomy and recovered at home
for six weeks, during which she felt much better. When she went back to work, however,
“the smell was still there,” and her symptoms returned when she was in the office. Her
superiors moved her to different locations in the courthouse, but the changes did not help.
She used about 500 accrued hours of leave.
McCormick was eventually told by her superiors that she “was a liability” and
“should stay home.” She filed a claim for workers’ compensation and, beginning in late
2012, took an extended leave of absence under the Family Medical Leave Act. She
continued to ask for accommodations, such as permission to telecommute, believing she
“just needed to be somewhere where [she] felt safe, knowing that [she] was able to
2
Before oral argument, we issued a tentative opinion that is substantively identical
to the final version. (See Ct. App., First Dist., Local Rules of Ct., rule 15(b).) In
response, CalPERS stated that it was “willing[] to accept the Court’s disposition for this
matter.”
2
breathe the air.” But her superiors declined to let her work anywhere other than in the
courthouse.
As part of the workers’ compensation process, McCormick was tested for allergies
and examined by a specialist in environmental health, who told her that her problems
were caused by chemical exposure. Testing of the courthouse revealed no mold and
showed acceptable air quality, however, and her workers’ compensation claim was
denied. In May 2013, Lake County terminated her employment because she had
exhausted her medical leave.
In late 2013, McCormick submitted an application for disability retirement to
CalPERS.3 In the application, she stated her disability was “[respiratory] and systemic
health problems as a result of exposures in indoor environment” at the courthouse. She
also explained she could “work in another building as long as [she] remain[ed]
asym[p]tomatic” but her employer “would not provide [her] a place outside” the
courthouse. CalPERS denied the application in December 2014.4
McCormick appealed the decision, and an administrative hearing on the appeal
was held in June 2016. In addition to her own testimony about her condition,
McCormick relied on medical evidence from Massoud Mahmoudi, D.O. Dr. Mahmoudi
examined McCormick in February 2013, in connection with her workers’ compensation
claim, and diagnosed her with “[a]llergic rhinitis” and an “allergic-like reaction of
unknown etiology.” The specific trigger of her symptoms was unclear, although they
were associated with her workplace, and he concluded that “avoidance [of] the work . . .
environment [was] the best remedy.”
In his initial report, Dr. Mahmoudi concluded that McCormick was “temporarily
partially disabled” but did not have a “permanent impairment.” At the hearing, he
3
McCormick is a local miscellaneous member of CalPERS. (See § 20383;
Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 496.)
4
After filing the application for disability retirement, McCormick filed an
application for service retirement, which was approved. In denying the application for
disability retirement, CalPERS noted that McCormick would continue to receive her
service retirement benefits.
3
explained he had assumed in forming his initial assessment that she would be able to find
a different location in which to work. While his diagnosis remained unchanged, he had
since concluded that McCormick was permanently disabled to the extent she was “unable
to work [at the courthouse] due to her symptoms.”
CalPERS presented medical evidence from Soheila Benrazavi, M.D., who
examined McCormick in June 2014. The exam revealed no physical abnormalities, and
Dr. Benrazavi concluded that McCormick did not have any physical or mental condition
that would prevent her from performing her job duties. At the hearing, Dr. Benrazavi
explained that, while there was no doubt McCormick was experiencing real symptoms
that were associated with her workplace, “if the environment can be amended or . . .
accommodations [could be provided] to help her, then she would not be disabled.”
The ALJ issued a proposed decision denying the appeal in July 2016. Although
there was no dispute that McCormick had a legitimate medical condition, the decision
concluded that the two doctors agreed “that [she] was not permanently disabled or
substantially incapacitated from performing her usual duties as an Appraiser III for the
County on the basis of her internal condition at the time she submitted her [a]pplication.”
The decision rejected McCormick’s argument that she was entitled to disability
retirement “because she was substantially incapacitated from performing her duties at the
[c]ourthouse, and the County would not accommodate her to work at a location outside
the [c]ourthouse.” Instead, it concluded that the evidence failed to show that her “internal
condition restricts . . . her ability to complete her job[] duties.” In September 2016, the
Board adopted the ALJ’s proposed decision, and McCormick filed an unsuccessful
petition for reconsideration.
McCormick then filed a petition for a writ of administrative mandate, which the
trial court denied in February 2018. Characterizing the evidence as “essentially
uncontroverted,” the court framed the determinative issue as “[t]he legal issue . . .
whether an incapacity sufficient to enable a person to obtain disability retirement can be
confined to a certain restricted environment.” After observing that the “answer . . .
depends primarily on the size and scope of the particular environment involved,” the
4
court determined that the relevant question was “whether or not the environment that
triggers the disability is one that can be remedied or obviated”:
“And both of the doctors’ opinions categorized Ms. McCormick’s
disability as temporary. Both of them opined that . . . there was nothing
they could find in their examination of Ms. McCormick that would prevent
her from performing all of the listed duties required of her, if the offending
environment, . . . the Lake County Courthouse, was purged of the offending
triggers. Or, secondarily, [if] she could be transferred to a different location
so as to avoid those offending triggers.
[¶] . . . [¶]
“Both doctors basically said, ‘Get [McCormick] out of the
courthouse and there are no usual duties of an Appraiser III that she can’t
do.’ The failure to accommodate [her] is the problem, in my view, not her
inability to perform physically the various duties required of her in that
position.”
II.
DISCUSSION
A. General Legal Standards.
1. Standards of review.
In her petition for a writ of administrative mandate, McCormick sought to
overturn the Board’s decision as an abuse of discretion under Code of Civil Procedure
section 1094.5, subdivision (c), because it was not “supported by the weight of the
evidence.” Where, as here, “ ‘the administrative decision substantially affects a
fundamental vested right, the trial court must exercise its independent judgment on the
evidence[,] . . . not only examin[ing] the administrative record for errors of law, but . . .
also conduct[ing] an independent review of the entire record to determine whether the
weight of the evidence supports the administrative findings.’ ” (Ogundare v. Department
of Industrial Relations (2013) 214 Cal.App.4th 822, 827; see Beckley v. Board of
Administration etc. (2013) 222 Cal.App.4th 691, 697 [disabled public employee has
fundamental vested right to disability pension].) In turn, when the trial court exercises
independent review, we review the court’s factual findings for substantial evidence.
5
(Ogundare, at p. 828.) In doing so, we “resolv[e] all evidentiary conflicts and draw[] all
legitimate and reasonable inferences in favor of the court’s decision.” (Cassidy v.
California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627.)
We agree with the trial court, however, that the essential issue presented here is a
legal one: whether McCormick is incapacitated within the meaning of section 21156
because of her inability to perform her duties in a particular location, the Lakeport
courthouse. Where, as here, a court decides “ ‘pure questions of law . . . upon undisputed
facts,’ ” our review is de novo. (Cassidy v. California Bd. of Accountancy, supra,
220 Cal.App.4th at p. 627.)
2. The interpretation of section 21156.
“The rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to
the words of the statute, giving them their usual and ordinary meaning. [Citations.]
When the language of a statute is clear, we need go no further. However, when the
language is susceptible of more than one reasonable interpretation, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004)
33 Cal.4th 335, 340 (Nolan).) In particular, “we give great weight to CalPERS’s
construction of California’s Public Employees’ Retirement Law (PERL) (Gov. Code,
§ 20000 et seq.). [Citations.] If, however, there is ‘any ambiguity or uncertainty in the
meaning of [the Public Employees’ Retirement System] legislation [it] is to be liberally
construed in favor of the public employee, as long as such construction is consistent with
the clear language and purpose of the statute.’ ” (Beckley v. Board of Administration etc.,
supra, 222 Cal.App.4th at p. 697, fn. omitted; see Haywood v. American River Fire
Protection Dist. (1998) 67 Cal.App.4th 1292, 1304 [“The rule of liberal construction
cannot be permitted to eradicate the legislative purpose of [the PERL] or to allow
eligibility for those for whom it obviously is not intended”].)
6
“The test for determining whether an employee subject to [the PERL] is disabled
is set forth in . . . section 21156.” (Jones v. Los Angeles County Office of Education
(2005) 134 Cal.App.4th 983, 990.) Under that statute, “[i]f the medical examination and
other available information show to the satisfaction of the [B]oard . . . that the member in
the state service is incapacitated physically or mentally for the performance of his or her
duties and is eligible to retire for disability, the [B]oard shall immediately retire him or
her for disability.” (§ 21156, subd. (a)(1); see § 20021.) “ ‘Disability’ and ‘incapacity
for performance of duty’ as a basis of retirement, mean disability of permanent or
extended and uncertain duration, as determined by the [B]oard . . . , on the basis of
competent medical opinion.” (Former § 20026.)5 In turn, “incapacity for performance of
duty” has been interpreted “to mean ‘the substantial inability of the applicant to perform
his [or her] usual duties.’ ” (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th
1443, 1451, quoting Mansperger v. Public Employees’ Retirement System (1970)
6 Cal.App.3d 873, 876, italics omitted.)
B. The Trial Court Assumed the Courthouse Was the Cause of McCormick’s
Symptoms, and It Made No Finding to the Contrary.
Initially, we address CalPERS’s claim that we can affirm the denial of
McCormick’s petition on the basis that the trial court made a “factual finding” that
“competent medical evidence established that [McCormick] was capable of performing
her usual duties.” CalPERS cites the following two sentences from the statement of
decision as constituting this finding: “Both [doctors] opined that . . . there was nothing
that they could find in their examination of Ms. McCormick that would prevent her from
performing all of the listed duties required of her, if the offending environment, which
just coincidentally is the building in which I sit, the Lake County Courthouse, was purged
of the offending triggers. Or, secondarily, whether she could be transferred to a different
location so as to avoid those offending triggers.”
5
Effective January 1, 2018, section 20026 was amended to specify that a disability
expected to last at least 12 months or result in death qualifies as one of “extended
duration.” (Stats. 2017, ch. 241, § 1.)
7
These statements amount to the unremarkable observation that McCormick—as
she effectively concedes—was physically capable of performing her usual duties if she
worked in an environment that did not trigger her symptoms. But contrary to CalPERS’s
argument, these statements do not reflect a finding that the courthouse did not cause
McCormick’s symptoms. To the contrary, they reflect an assumption that her symptoms
were caused by the courthouse. Thus, it is irrelevant whether CalPERS is correct that “no
medical and/or scientific evidence establish[ed] that the [c]ourthouse was the cause of
[McCormick’s] alleged medical condition.” Even if substantial evidence was presented
upon which the trial court could have found that McCormick’s symptoms were not
caused by the courthouse, we cannot affirm the denial of the petition based on such a
hypothetically possible but nonexistent finding.
C. A CalPERS Member’s Usual Duties Are Those Required by the Member’s
Actual Employer, and Lake County Required McCormick to Work at the
Courthouse.
We now turn to the role of a member’s employer in determining the scope of the
member’s usual “duties” under section 21156. The parties focus on Nolan, in which our
state Supreme Court addressed whether an Anaheim police officer who experienced
extreme “threats and harassment by other Anaheim officers” was psychologically
incapacitated for the performance of his duties under former section 21156. (Nolan,
supra, 33 Cal.4th at pp. 338–339.) At the time, the statute required that a member be
“incapacitated physically or mentally for the performance of his or her duties in the state
service.” (Former § 21156, italics added; Nolan, at p. 338.) Focusing on the phrase “in
the state service,” the Court rejected the officer’s claim that “he need only show he is
incapable of continuing to perform his duties as a patrol officer for Anaheim,” i.e., his
“last employer,” and held that he was also required to show “that he is incapacitated from
performing the usual duties of a patrol officer for other California law enforcement
agencies.” (Nolan, at pp. 338, 341–342, italics omitted.)
Two years later, in response to Nolan, the Legislature amended section 21156.
Instead of requiring that the member be incapacitated “for the performance of his or her
8
duties in the state service,” the statute now requires “that the member in the state service
[be] incapacitated physically or mentally for the performance of his or her duties.”
(Assem. Bill No. 2244 (2005–2006 Reg. Sess.) § 10, italics added.) According to the
Senate floor analysis of the bill,
“Historically, CalPERS has interpreted duties ‘in the state service’ to
mean the actual duties the member was performing when he or she became
disabled with his or her current employer. In September 2004, however,
the California Supreme Court, in the Nolan decision, interpreted this
section more broadly thereby establishing a new standard that . . . must [be
met] to qualify for disability retirement.
“Specifically, the Supreme Court changed the criteria for
determining disability retirement by interpreting ‘in the state service’ to
require a CalPERS member to show that he or she is not only substantially
incapacitated from performing the usual duties of the position for his or her
current employer, but also from performing the usual duties of the position
for other CalPERS-covered employers.
“. . . [T]he change proposed by this bill would serve to reaffirm
CalPERS’[s] historical practice that a member would be eligible for
disability retirement provided he or she could show substantial incapacity
to perform the usual duties required of his or her current employer.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assembly Bill No. 2244, as
introduced Feb. 22, 2006.)
Here, the trial court remarked that it would “make[] no sense” if McCormick was
to receive disability retirement and be able to “go across the street and get a job [with a
different employer] as an appraiser with all of the same duties as an Appraiser III” and
“be working doing the exact same things that she was found to have been disabled for
and received a disability retirement for.” But as the legislative response to Nolan makes
clear, section 21156 is concerned with members’ ability to perform their duties for their
actual employers, not their ability to perform those duties in the abstract. Thus, the
relevant question is whether McCormick was incapacitated from performing the duties of
an Appraiser III for Lake County, not whether she was incapacitated from performing
them elsewhere.
9
That this is the critical question is supported by Lonicki v. Sutter Health Central
(2008) 43 Cal.4th 201 (Lonicki). Lonicki addressed the scope of an employee’s essential
functions under the Moore-Brown-Roberti Family Rights Act (§§ 12945.1, 12945.2)
(CFRA). The CFRA authorizes a covered employee to take “up to 12 weeks of unpaid
‘family care and medical leave’ ” in certain circumstances, including “when ‘an
employee’s own serious health condition . . . makes the employee unable to perform the
functions of the position of that employee.’ ” (Lonicki, at p. 208, some italics omitted.)
The Lonicki plaintiff claimed that her depression prevented her from working at one of
the defendant’s hospitals, but while she was away from that hospital she worked part time
for a different hospital doing similar work. (Id. at p. 207.) The Court of Appeal held that
she was not entitled to medical leave because “under the CFRA an employer must grant
medical leave only if the employee is unable to perform the employee’s essential job
functions ‘generally, rather than for a specific employer.’ ” (Id. at p. 214.)
The Supreme Court reversed, concluding that “ ‘the inquiry into whether an
employee is able to perform the essential functions of her job should focus on her ability
to perform those functions in her current environment.’ ” (Lonicki, supra, 43 Cal.4th at
pp. 214–215, quoting Stekloff v. St. John’s Mercy Health Systems (8th Cir. 2000)
218 F.3d 858, 862, italics added.) Thus, like the PERL, the CFRA requires an employer-
specific analysis of the scope of an employee’s duties. The Supreme Court explained that
under such an analysis, “[w]hen a serious health condition prevents an employee from
doing the tasks of an assigned position, this does not necessarily indicate that the
employee is incapable of doing a similar job for another employer. By way of
illustration: A job in the emergency room of a hospital that commonly treats a high
volume of life-threatening injuries may be far more stressful than similar work in the
emergency room of a hospital that sees relatively few such injuries. Also, the
circumstance that one job is full time whereas the other is part time may be significant:
Some physical or mental illnesses may prevent an employee from having a full-time job,
yet not render the employee incapable of working only part time.” (Lonicki, at p. 215.)
The parallels to this case are clear. McCormick’s theoretical ability to perform the duties
10
of an appraiser somewhere other than the Lakeport courthouse does not foreclose a
finding under section 21156 that she was unable to perform her usual duties.
CalPERS argues that the trial court found that McCormick “failed to establish that
her usual duties must be performed at the [c]ourthouse.” But even if we were to agree
that the court made such a finding, it would not be supported by substantial evidence. As
CalPERS concedes and as we discuss in more detail below, Lake County denied
McCormick’s request for an accommodation, which included a request to work in a
different location or environment. No evidence was presented that Lake County was
willing to allow McCormick to work somewhere other than at the courthouse.
At the administrative hearing, CalPERS introduced two documents explaining the
duties of an Appraiser III, the last position McCormick held with Lake County. As
CalPERS observes, and the trial court agreed, the documents—Lake County’s summary
of the Appraiser III position and a CalPERS form McCormick filled out that further
detailed the physical requirements of her position—“do not mention that [McCormick’s]
job must be performed at a specific location.” CalPERS is incorrect, however, that these
documents’ silence as to the work location establish that Lake County did not require
McCormick to work in the courthouse as part of her usual duties.
Hosford v. Board of Administration (1978) 77 Cal.App.3d 854 is instructive.
There, the Court of Appeal rejected arguments that a California Highway Patrol
sergeant’s usual duties should “be determined exclusively by use of the job description
prepared by the State Personnel Board”—which applied to sergeants specifically—or a
“document titled ‘Typical Physical Demands on the State Traffic Officers and Sergeants’
prepared by the highway patrol”—which set forth “more strenuous functions.” (Id. at
pp. 858, 860.) In doing so, Hosford observed, “Obviously, although the Personnel
Board’s job description does not expressly state that a sergeant should be physically able
to make arrests and subdue prisoners, his exposure to such activity is implied from the
fact that he supervises traffic officers who perform such functions. By the same token,
although sergeants are lumped together with traffic officers in the ‘Typical Physical
Demands’ document, it is apparent from the evidence that the supervisory nature of their
11
work makes such physical demands upon sergeants much less frequent than upon traffic
officers.” (Id. at p. 860.) In other words, while official descriptions of a position’s duties
may inform the analysis (see Nolan, supra, 33 Cal.4th at p. 344), they must be construed
in context and with common sense.
Here, the two documents’ omission of any mention of the courthouse is
insufficient evidence that McCormick’s usual duties did not require her to work there.
There is no question that an Appraiser III’s duties included work in an office. Under the
heading “Typical Working Conditions,” the summary of the position stated, “Work is
performed in office and outdoor environments, continuous contact with other staff and
the public.” (Some capitalization omitted.) If a position requires work in an office, and
the employer has a particular office where that work is performed, it would be
unreasonable to conclude, absent some evidence to the contrary, that the position’s usual
duties do not include working there. Moreover, the summary stated that the position
required “continuous contact with other staff” and that training other staff was both a
“distinguishing characteristic[]” and “important and essential dut[y]” of the position.
(Some capitalization omitted.) This language clearly contemplated that an Appraiser III
would spend at least some time in an office where other staff members also work. In
short, there is no substantial evidence that McCormick’s usual duties allowed her to work
somewhere other than at the courthouse.
D. CalPERS Cannot Deny Disability Retirement on the Basis that a Member
Could Perform His or Her Usual Duties with an Accommodation that Was
Not Provided.
Finally, we turn to the determinative legal issue in this case: whether, as CalPERS
argues and the trial court agreed, members are ineligible for disability retirement when
they are “ ‘physically capable of performing all of the usual duties for their actual
employer, and the only impediment to performing the duties is [the] employer’s alleged
failure to provide reasonable accommodations.’ ” We conclude that CalPERS may not
deny disability retirement under section 21156 when, due to a medical condition,
12
applicants can no longer perform their duties at the only location where their employer
will allow them to work.
We begin by briefly reviewing the general requirement that employers
accommodate employees who have a disability. The California Fair Employment and
Housing Act (FEHA) “requires employers to make reasonable accommodation for the
known disability of an employee unless doing so would produce undue hardship to the
employer’s operation. (Gov. Code, § 12940, subd. (m).)” (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 373.) “A reasonable accommodation is a modification or
adjustment to the work environment that enables the employee to perform essential
functions of the job he or she holds or desires.” (Ibid.) Similarly, the Americans with
Disabilities Act (ADA), on which “FEHA’s accommodation requirements are modeled
. . . , ‘requires an employer, in the absence of undue hardship, to make “reasonable
accommodation” for an employee . . . with a known disability.’ ” (Nealy, at p. 375,
fn. 1.) Under both the FEHA and the ADA, a plaintiff suing an employer for disability
discrimination must establish that he or she can, with or without reasonable
accommodation, perform the essential duties of the job. (Green v. State of California
(2007) 42 Cal.4th 254, 262–263.)
Here, we are not asked to decide whether Lake County properly denied
McCormick’s request for an accommodation to work somewhere other than at the
courthouse.6 Rather, we must decide what role, if any, the existence of a theoretical
6
At least under the ADA, employers are generally not required to accommodate
disabled employees by permitting them to work remotely. As the Ninth Circuit Court of
Appeals has explained, “Both before and since the passage of the ADA, a majority of
circuits have endorsed the proposition that in those jobs where performance requires
attendance at the job, irregular attendance compromises essential job functions,” such as
in-person teamwork and interaction with clients or use of on-site items and equipment.
(Samper v. Providence St. Vincent Medical Center (9th Cir. 2012) 675 F.3d 1233, 1237;
see also Tyndall v. National Educ. Centers (4th Cir. 1994) 31 F.3d 209, 213.) Thus,
“except in the unusual case where an employee can effectively perform all work-related
duties at home [or another remote location], an employee ‘who does not come to work
cannot perform any of his [or her] job functions, essential or otherwise.’ ” (Tyndall, at
13
accommodation plays in determining a member’s eligibility for disability retirement. The
PERL itself contains no language tying eligibility for disability retirement to the
possibility of an accommodation. This is unlike the Teachers’ Retirement Law (Ed.
Code, § 22000 et seq.), which defines “disability” for purposes of disability retirement as
“any medically determinable physical or mental impairment that is permanent or that can
be expected to last continuously for at least 12 months . . . that prevents a member from
performing the member’s usual duties for the member’s employer, the member’s usual
duties for the member’s employer with reasonable modifications, or the duties of a
comparable level position for which the member is qualified or can become qualified.”
(Ed. Code, § 22126, italics added.) If a member applies for disability retirement and the
Teachers’ Retirement Board determines that he or she “may perform service in the
member’s former position of employment or in a comparable level position with the
assistance of reasonable accommodation, the board may require the member to request
reasonable accommodation from the employer.” (Id., § 24103, subd. (d), italics added;
see id., § 22109.) A member’s failure to request accommodation is grounds for denial of
the application, and “[i]f the employer fails or refuses to provide reasonable
accommodation, the board may require the member to pursue an administrative appeal of
the employer’s denial as a condition for receiving a disability retirement allowance under
this part.” (Id., § 24103, subds. (d)–(e).)
The Teachers’ Retirement Law demonstrates that the Legislature was fully capable
of giving CalPERS authority to require members to seek an accommodation as a
prerequisite for disability-retirement eligibility. But it did not do so. “When the
Legislature uses materially different language in statutory provisions addressing the same
subject or related subjects, the normal inference is that the Legislature intended a
difference in meaning.” (People v. Trevino (2001) 26 Cal.4th 237, 242.) And even if
section 21156 could be interpreted to allow CalPERS to require a member to seek an
p. 213; accord Smith v. Ameritech (6th Cir. 1997) 129 F.3d 857, 867; Vande Zande v.
State of Wis. Dept. of Admin. (7th Cir. 1995) 44 F.3d 538, 544–545.)
14
accommodation, that interpretation would not matter here because McCormick in fact
asked for an accommodation, and it was—rightly or wrongly—denied.
In sum, we conclude that her usual duties required McCormick to work in the
Lakeport courthouse, and whether she could have performed her duties elsewhere is
irrelevant to her eligibility for disability retirement under section 21156. As a result, the
trial court erred as a matter of law by concluding that her ability to perform her duties at a
theoretical other location left her ineligible for disability retirement.
III.
DISPOSITION
The trial court’s order denying the petition for writ of administrative mandate is
reversed, and the matter is remanded for further proceedings consistent with this opinion.
15
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
McCormick v. California Public Employees’ Retirement System A154236
16
Trial Court:
Lake County Superior Court
Trial Judge:
Hon. David W. Herrick
Counsel for Plaintiff and Appellant:
Benjamin K. Karpilow, Law Office of Richard J. Meechan
Counsel for Defendant and Respondent:
Matthew G. Jacobs, General Counsel, California Public Employees’ Retirement
System
John Shipley, Senior Attorney, California Public Employees’ Retirement System
McCormick v. California Public Employees’ Retirement System A154236
17