LCW Partner Jennifer Rosner And Associate Christopher Frederick Convince Hearing Officer To Uphold Deputy Sheriff’s Termination

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Dec 07, 2023

A Deputy Sheriff began employment with the County in 2002.  In 2007, the Deputy had a stroke.  He was hospitalized for one week.  He was placed on restrictive duty for two months.  He then returned to work without restrictions.  In July 2018, the Deputy filed for Industrial Disability Retirement (IDR) claiming heart issues and hypertension, memory loss, bladder issues, and psychological issues.  The County denied his application, and the Deputy appealed.  A few weeks before the appeal hearing in June 2019, the Deputy withdrew his appeal and stated that he would like to return to work.

The County sent numerous “Notice of Leave Approval” letters to the Deputy between August 2019 and September 2020.  Those notices informed him that he had the option to return to work with reasonable accommodations, if needed, and if he was not medically able to return to work, he needed to apply for an “Official Leave of Absence”.  The notices also stated that a failure to comply with the directives could result in discipline.

Rather than comply with the options, the Deputy filed another IDR application in June 2020 that listed the hypertension and bladder issues again, as well as a new third health condition- erectile dysfunction.  CalPERS refused to consider the first two since they had already been denied in the first IDR application and the Deputy had voluntarily withdrawn his appeal.  The County denied the IDR on the third issue, and the denial was upheld on appeal.  Further, a medical examiner found that the Deputy’s health conditions did not substantially incapacitate him from performing his duties as Sheriff, nor were any accommodations needed.

The County then sent a “Return to Work” letter to the Deputy.  Once again, the Deputy did not return to work. Instead, he filed a third IDR application, which CalPERS canceled because the exact same health conditions were listed on this application as on his first IDR application.  Between November 2021 and May 2022, the Deputy received and ignored three additional “Return to Work” letters.

The County subsequently initiated an investigation into the Deputy’s conduct and terminated him based on the findings that he deliberately disobeyed orders of his superior, was absent without approved leave, and neglected his duties.

On appeal of his termination, the Deputy claimed his conditions rendered him unable to return to work and that he qualified for full medical disability.  He further claimed the County’s letters constituted discrimination against him because of his disabilities.

The Hearing Officer agreed with the County and the Sheriff’s Department.  The Deputy had received at least eight “Notice of Leave Approval” letters outlining his required next steps, including the opportunity to apply for official leave if he felt that he was not medically able to return to work.  Instead, the Deputy ignored them along with all subsequent “Return to Work” letters that he received over the intervening years.  The Hearing Officer found that the County had provided the Deputy with ample opportunity to participate in an interactive process over his alleged disability, and there was no question that the Deputy had committed the misconduct that led to his termination.

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