Riverside Sheriffs’ Association v. County of Riverside
Filed May 18, 2009, Fourth District, Div. Two
Cite as 2009 SOS 2778

Employee’s Termination and Retirement Appeals Upheld

Leisha Fauth (Fauth) was employed at County Riverside as peace officer for eleven years. Due to her good performance, Fauth was promoted to senior investigator II.

Ronald, Fauth’s husband wrote the Riverside County Office of the District Attorney (DA) that the latter was being sexually harassed at work. Ronald also sent an unintelligible voice mail message to DA Chief Investigator Clay Hodson (Hodson).

Hodson told Fauth about the call. In reply, Fauth handed to Hodson Ronald’s letter complaining about the harassment.

Alarmed, Hodson contacted a clinical psychologist, Dr. Victoria Havassy (Havassy) who reviewed Ronald’s letter. Havassy believed that Ronald was paranoid/delusional. Ronald concluded that Ronald posed a threat to DA office employees. Further, she stated that by giving the letter to Hodson, Fauth also posed a threat as she facilitated her husband’s paranoid/delusional behavior.

Following Havassy’s advice, Hodson wrote Fauth a letter advising her on a paid administrative leave and suspending her peace officer’s powers, including carrying a gun, pending a psychological fitness-for-duty evaluation. Hodson reminded Fauth that non compliance with the order constituted insubordination which was a ground for termination.

After the evaluation, Havassy concluded that Fauth was unfit to perform the duties of a senior DA investigator. Subsequently, Fauth and Paul Collins, a Riverside Sheriffs’ Association (RSA) representative, met with Riverside County representatives to determine eligibility to employment accommodation. Fauth informed such representatives that she was not disabled.

Subsequently, Hodson informed Fauth that the county was terminating her paid administrative leave and that she could use her sick leave instead.

In a written grievance, Fauth opposed the county’s termination on her paid administrative leave. Fauth requested to be reinstated to her former position pending investigation and asked for the reimbursement of lost wages and benefits violation of the memorandum of understanding (MOU) covering her employment.

Responding to the Fauth’s grievance, the county informed Fauth that the DA erred in giving her sick leave as she was not ill. Moreover, the DA failed to give proof of her disability. Fauth was also informed that there was no need to continue with the interactive process since there was no evidence that Fauth had a disability requiring accommodation. Hence, the county terminated Fauth’s employment since she was no longer qualified to perform her duty.

Subsequently, Hodson notified Fauth that she was neither entitled to hearing nor appeal as provided under Article XII of the MOU.

Consequently, the RSA filed an appeal pursuant to Article XII but the county rejected such appeal.

Fauth sough another psychologist, Dr. Soltz, who found that Fauth was fit for duty. Dennis Hayes, Fauth’s attorney, requested the county for a joint hearing on Fauth’s two pending appeal – first for violating MOU when it required Fauth to submit to fitness-for-duty examination to a psychologist not of her own choosing and second for challenging the termination.

The county refused reinstatement and rejected the appeal. Fauth filed a petition for writ of mandate contending that the county’s decision of rejecting her appeal was a violation of Article XII of the MOU and section 3304, subdivision (b) of POBRA. Fauth also asked for a $25,000 in civil penalties, back pay, and attorney’s fees and costs under POBRA.

The trial court ruled that while Fauth was entitled to MOU appeal, she was not entitled to reliefs under POBRA because the county’s action was not punitive in character.

The appellate court, however, made the following ruling:

1. Fauth was entitled to appeal proceedings as provided under the MOU challenging her termination. This was in addition to a separate appeal opposing her involuntary disability retirement.

Termination for a cause and involuntary disability retirement were two distinct means of removal hence they must be appealed in two different forums and under two different procedures. Moreover, both means of removal could not co-exist because once an employee is terminated for a cause, the employment relationship is severed hence retirement benefits are no longer available.

2. The trial court erred in dismissing employee’s claim under POBRA on the ground that Fauth’s dismissal was not punitive. The appeal court found that Fauth’s employment termination was punitive under the Public Safety Officers Procedural Bill of Rights Act.