James Suess, was employed as a police corporal by the City of Pomona. In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him.

On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Suess was notified of both complaints and was interviewed during both investigations, and was placed on paid administrative leave pending completion of these investigations.

On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and dishonesty during his interviews.

Suess requested a pre disciplinary meeting with his department, which was held on July 18, 2017. At that meeting, Suess suggested he “suffered physical, mental and emotional trauma’ and need[ed] proper care and treatment.” While it was unclear to Pomona Police Chief Paul Capraro whether Suess was suggesting his conduct was the result of a disability, he “did not provide any documentation substantiating [his] alleged disability or request any accommodations related to this incident near the time of incident or early in the investigation.”

On August 3, 2017, the City notified Suess he was terminated from his employment as a police corporal effective August 4, 2017. The City provided Suess with notice of his right to appeal the decision within 15 days. Suess did not appeal.

In April 2017, several months before his termination, Suess filed a workers’ compensation claim based on his involvement in a 2012 officer-involved shooting incident which occurred on February 26, 2012. After a high-speed chase on that date, a suspect pointed a shotgun at Suess and another police officer from a different jurisdiction (West Covina) who pursued the suspect into Pomona. The other officer shot and disarmed the suspect. The suspect was later convicted of attempted murder of Suess and other officers.

Suess did not request psychological services at the time. He continued to perform his duties as a police officer until his off duty misconduct led to disciplinary proceedings in 2016. His workers’ compensation claim was “denied based on a violation of [the] statute of limitations L[abor] C[ode ]5410, and the lack of current substantial medical evidence.” As with his termination, Suess did not appeal the denial of his workers’ compensation claim.

In April 2019, twenty months after his termination of employment from the City, Suess filed a disability retirement election application with respondent CalPERS based on posttraumatic stress disorder, among other disabling conditions. CalPERS determined he was “not eligible for disability retirement.” Accordingly, on July 22, 2019, CalPERS denied Suess’s application. An ALJ affirmed the denial of his CalPERS claim after an administrative appeal challenging CalPERS’s decision.

His petition for a writ of mandate was denied by the Superior Court. And the decision of the trial court was affirmed by the Court of Appeal in the unpublished case of Suess v. California Public Employees Retirement System -G062730 (December 2023).

On appeal Suess contends that the ALJ misapplied the Haywood (Haywood v. American River Fire Protection District (1998) 67 Cal.App.4th 1292) and Smith cases (Smith v. City of Napa (2004) 120 Cal.App.4th 194), which Suess argues “were inapposite to this case.” The Court of Appeal disagreed.

As explained in Haywood, “where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement . . . .”

“Nor are disability retirement laws intended as a means by which an unwilling [-to-faithfully-and-competently-perform] employee can retire early in derogation of the obligation of faithful performance of duty. The pension roll is a roll of honor – a reward of merit, not a refuge from disgrace; and it would be an absurd construction of the language creating it to hold that the intention of the Legislature was to give a life annuity to persons who, on their merits, as distinguished from mere time of service, might be dismissed from the force for misbehavior.”

In Smith, the appellate court held that a terminated employee may qualify for industrial disability retirement if he or she had a “matured” right to do so before his or her termination for cause.

Smith recognized an exception to the rule set forth in Haywood: “[c]onceivably, there may be facts under which a court, applying principles of equity, will deem an employee’s right to a disability retirement to be matured and thus survive a dismissal for cause.” But Smith held the disability evidence must be “unequivocal” to constitute a matured right.

Suess claims Smith and Haywood are distinguishable because he was “deprived of the ability to present medical evidence of his condition [by] a violation by the City [of] its own policy regarding the provision of professional counseling to officers following an officer-involved shooting.” Suess suggests he would have had more compelling evidence of a disabling PTSD condition if the City had adhered to that policy. He also suggests CalPERS “abused its discretion” in denying his application for disability retirement “without obtaining medical evidence available to it from Respondent City of Pomona.”

The Court of Appeal again disagreed. The ALJ correctly observed in her ruling, “an applicant for disability retirement has the burden of proving . . . that he is entitled to it.” (Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327, 1332.) Suess did not establish an unequivocal matured right to disability retirement under Smith where his own testimony indicated he was not incapacitated by the 2012 shooting.