ATTACHMENT C

RESPONDENT(S) ARGUMENT(S)

BEFORE THE BOARD OF ADMINISTRATION CALIFORNIA PUBLIC EMPLOYEES'

RETIREMENT SYSTEM STATE OF CALIFORNIA In the Matter of Accepting theApplication for Industrial Disability Retirement of: CHARLES A. THERRIEN

Respondent Case No. 2018-0045 OAH No. 2018040068.1Page 1-6

RESPODENTS ARGUMENT

Dear Board members to insure we stay within the 6-page requirements, our responseto the opposition of the propose decision will be in bold. ^ ̂

Opposition of Administrative Law Judge (ALJ) TIMOTHY J. ASPINWALL Jonathanadministrative Hearings 'Remand" (OAH), State of California. The original hearingwas held on August 14, 2018 in the proposed decision for August 5, 2020 theALJ states.

There was no appearance on behalf of the California Department of Forestry and FireProtection (CAL FIRE) on August 14, 2018. On the contrary Mr. Bruce Crane CALFIRE attorney testified on behalf of CAL FIRE he was sworn in as a witness andwas placed under oath. In opening arguments during the August 14, 2018CalPER's Counsel Preet Kaur was insinuating that the respondent was

terminated from employment therefore was not intitled to an industrialdisability retirement. During Mr. Crane's questioning it was established therespondent was never terminated and had reinstatement rights, the entireproceedings can be found in the hearing minutes.

CROSS-EXAMINATION BY MR. THERRIEN:

Q. Mr. Crane, getting to that information, so you're saying that 1 could go back to workfor Cat Fire essentially tomorrow? If I use - using her terms (Kaur), if I slip through thecrack, I could actually go back to work for Gal Fire tomorrow?

A. My understanding is that because you held the - you were a permanent civil serviceemployee in the classification of a fire captain, that you would be eligible to apply for afire captain position. As to whether or not you would be hired by Cal Fire, that is adetermination that will be made by -

Q. So you answered the question. Is it I would be able to go back as a fire captain inthat position? You just said yes a second ago.

MS. KAUR: Objection. Misstates testimony.

ADMINISTRATIVE LA W JUDGE LEW: Let him finish his answer.

THE WITNESS: I'm - I have some knowledge of the civil service rules. I'm not in thehiring unit, and Im not in the classification of pay. But, again, my understanding is youwould be eligible to apply for a position in Cal Fire as a fire captain based on havingachieved permanent civil service status as a fire captain previously.

BY MR. THERRIEN:

Q. Okay. Also, is there any documents that you know through SFB or through your officethat states that I cannot reapply for a position with Cal Fire?

A. I'm not aware of any documents which would unconditionally prohibit you from seekingan employment from Cal Fire

Attachment C

Page 2-6

On January 18, 2019, respondent filed a Petition for Writ of Mandamus (Writ Petition)in the Superior Court of California, County of Sacramento (Sacramento SuperiorCourt). The matter was assigned Case No. 34-2019-80003058.

On December 20, 2019, in Sacramento Superior Court Case No. 34-2019- 80003058,Judge Jgimes P. Arguelles issued an Interlocutory Order Remanding the Case to theCalPERS Board (Remand Order), directing the CalPERS Board to reconsider itsDecision as follows:

The Board, or any ALJ assigned in the first instance, shall consider whether the 2011Agreement ever took effect and, if so, any impact it has on Therrien's eligibility for anindustrial disability retirement.On August 5, 2020, a hearing on remand was held by video/teleconference before ALJTimothy J. Aspinwall, OAH, State of California, from Sacramento, California. PreetKaur, Staff Attorney, represented CalPERS, and respondent appeared on his ownbehalf. There was no appearance on behalf of CAL FIRE. NO DISCUSSION ABOUTMR. THERRIEN'S DISABILITY WAS EVER DISCUSSED NOR ENTER INTO

RECORD, PER THE COURT ORDER.

FACTUAL FINDINGS

1,2,34. The 2011 Agreement referenced in the Sacramento Superior Court's RemandOrder is a Settlement Agreement and Release of Claims between respondent and CALFIRE. Pursuant to the 2011 Agreement, the parties resolved a Fair Employment andHousing Act lawsuit (FEHA lawsuit) brought by respondent against CAL FIRE and CALFIRE employees in Riverside County Superior Court Case No. RIC 499660. The 2011Agreement was signed by respondent and his attorney, Daniel Kodam, on May 17,2011, and by CAL FIRE on May 18, 2011. During the August 5, 2020Administrative Hearing a witness for CalPER*s testified that all signatures werestored at the attorney generals electric vault however according to theagreement after all signatures were in place the agreement must be sent to CALFIRE as a final binding destination.

AGREEMENT

Two known facts from the agreement (Exhibit "F**) itself are located on

paragraph 4 and 25. Paragraph 4. No Effect Upon THERRIEN's Retirement or Medical

Benefits

THERRIEN is receiving retirement benefits and medical benefits from the State of

California, by virtue of his retirement from CAL FIRE. (Note: CalPERS first argument

is that the respondent was terminated as you can read he was not). This

AGREEMENT does not have and is no intended to have any affect upon THERRIEN's

receipt of or eligibility for medical and retirement benefits. Those benefits are not the

subject of this AGREEMENT.

Paragraph 25. Execution in Counterparts

Page 3-6

This AREEMENT may be executed in counterparts and shall be binding on all partiesas if the original was signed by all parties. All original signatures shall be transmittedto and kept by counsel for CAL FIRE. (Mr. Crane testifled on August 4, 2018 he wasnot aware of anything in writing that would prohibit the respondent to seekemployment, his testimony).

Mr. Kodam the respondents attorney back in 2011 was also not aware of the

AGREEMENT since the attorney's general office did not send him an executed

copy nor CAL FIRE, the only forum known to have a true copy is the electronic

file located at the attorney general's ofHce, Mr. Kodam provided a declaration to

that effect.

The agreement was solely to resolve a lawsuit it should have no bearing on Mr.Therrien disability nor the industrial disability retirement process.

Was the court order satisfied as the judge asked a legitimate question, is MR.THERRIEN DISABLE? which was never asked at either proceedings, we want toshed some light onto Mr. Therrien's disability.

Mr. Therrien worked in Moreno Valley California a specific fire station in Moreno

Valley station 65 has been known to create cancer among the employees, below

is a list of names both survivors and deaths these firefighters had one thing in

common, working at station 65 as did Mr. Therrien.

1. Perry Hall (deceased in or around 2017)

2. David Parks (deceased in or around 2000)

3. Mike Veit (deceased in or around 2005)

4. Chuck Tasker (survived)

5. Ronald Smith (survived)

6. Gil Barrier (survived)

7. Lilian Diaz (survived)

8. Charles A. Therrien (survived, throat cancer)

These are just a few names, there are more but for the purpose of getting Mr.

Therrien point across, Mr. Therrien developed cancer during his Firefighting

career which did not manifest for several years later after he retired therefore

Mr. Therrien filed for Industrial Disability Retirement.

Mr. Therrien was awarded a WorkersComp award for his disability Claim No.06069918 Case No. AD59944447 Pursuant to; California Code, Labor Code - LAB §3212.1

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LEGAL CONCLUSIONS

^1 Haywood v, American River Fire Protection District (1998) 67 Cal.App.4th 1292

(Haywood). Mr. Haywood was terminated with cause after 17 years of civil

servant and 18 incidents which lead up to his termination, Mr. Haywood did not

have a service retirement.

Thenien v. CalPBRS Superior Court of California County of Sacramento

Case No.: 34-2019-80003058 (Therrien). Mr. Therrien retired he didn't

resign nor was he terminated it was a service retirement he invested 25+

years in the Hre service. (The difference between retiring and resigning is

that when you retire, you still can receive benefits like healthcare and a

pension. ... Resigning means you voluntarily quit your job, which means

you're not eligible for those benefits.) in the Haywood case although it was

over turned it's like matching apples to oranges simply because it's a

presidential case the board must take under consideration whether it is

appropriate to consider Mr. Therrien cancer vs. Mr. Haywood mental

Page 5-6

anguish is the same even after Mr. Haywood recovered pursuant to court

documents regarding industrial disability.

Smith V. City of Napa (2004) 120 Cal.App.4th 194 (Smith). Mr Smith was terminated after 19 years of service his termination was based on his lack of performance Mr. Smithdid not have a service retirement, under smith v. city of Napu (2004)120 Cell. App. 4th 194(Smith), a terminated employee may qualify for disabi li ty reti rement if he or she hada "matured right" to a di sabi) i ty reti rement prior to the conduct which prompted thetermination. Third, Smith further recognized that there might be instances where "a court, applying principles of equity, will deem an employee's right to a disabilityreti rement to be matured and thus survive a dismissal for cause. " (Id. at pp. 206-207)

Mr. Therrien received a service retirement from CAL FIRE since day one

CAL FIRE has not opposed Mr. Therrien's Industrial Disability Retirement,

Mr. Smith's agency did. The board must take that into consideration does

Smith case match Mr. Therrien's case?

Mr. Therrien's Retirement Badge

Robert Vandergoot (October 16, 2013) Precedential Decision No. 13-01, Case No.

2012-0287, OAH No. 2012050989 (Vandergoot). Mr. Vandergoot was terminated

with cause and then later enter into a "STIPULATION OF AGREEMENT" which

CAL FIRE enter its own stipulation and kept it in their files [Employer-Employee

Agreement] this is not the same as "SETTLEMENT AGREEMENT AND RELEASE

OF CLAIMS" the exhibit "F" again it was a settlement within a lawsuit filed.

Phillip D. MacFarland (June 22, 2016) Precedential Decision No. 16-01, Case

No. 2014-0177, OAH No. 2014060759 (MacFarland).

Page 6-6

After reviewing the McFarland case and what if any similarity existed comparedto the Therrien case there are none, Mr. Farland filed an Industrial disabilityretirement after 3 years of employment with the CALIFORNIA STATE PRISON.SACRAMENTO, CALIFORNIA DEPARTMENT OF CORRECTIONS ANDREHABILITATION Mr. Therrien was employed for 25 years with THE CALIFORNIADEPARTMENT of FORESTRY and FIRE PROTECTION (CAL FIRE) which earnedhim a full-service retirement.

Mr. McFarlands NOAA remains in place as of date. There is no comparison asstated by Ms. Kaur on August 14, 2018 during the Administrative hearing.

Martinez v. Public Employees' Retirement System (2019) 33 Cal.App.Sth 1156, 1176. 3In September 2014, the parties negotiated a settlement, under which DSS agreed to pay Martinez

$30,000, withdraw the NOAA, and remove certain matters from her personnel file. Martinez agreed to"voluntarily resign from her position ... effective at the close of business on September 30, 2014. [DSS]hereby accepts Martinez's voluntary resignation as of the day of the execution of this settlementagreement [September 22, 2014]." Martinez agreed "she will never again apply for or accept anyemployment position" with DSS, which "agree[d] to cooperate with any application for disabilityretirement filed by Martinez within the next six months."

Again, in the Martinez case it was a stipulation of settlement agreement by bothparties. Mr. Therrien did not negotiate retirement over alleged disciplinaryaction and/or termination.

In closing Mr. Therrien was already retired in 2007 the agreement wasn'tsettled??? Until 2011

Is the agreement challengeable in court since it was never executed?Is Mr. Therrien entitled to a disability retirement based on state and federallaws?

Is CalPERS cases presented equivalent to those of Mr. Therrien's claim, considerall the above cases minus Mr. Therrien have something in common, they were allterminated.

Was the court order satisfied as the judge asked a legitimate question, is MR.THERRIEN DISABLE? which was never asked at either proceedings.

I, Charles A. Therrien declare under penalty of perjury under the laws of theState of California that the foregoing is true and correct to the best of myknowledge.

A 10/20/2020

Charles A. Therrien Date

PROOF OF SERVICE BY UNITED STATES POSTAL SERVICE

CCP § 1013

Re; In the Matter of the Charles A. Therrien Case No. 2018-0045 OAH No.

2018040068.

RE: Industrial Disability Retirement Rejection

I, Moses M. Scrinana, declare I am over the age of 18 years and not a party to

the within action.

On October 21, 2020, 1 served true copies of the following: 6 pages"RESPONDENTS ARGUMENT" "by US moil I caused such document(s), in sealedenvelope(s) with postage thereon fully prepaid United States moil fromSacramento County, California on October 15, 2020 to the addresses listedbelow:

Cheree Swendensky, Assistant to the Board

CalPERS Executive Office

P.O Box 942707

Sacramento, OA 94229-2707

I declare under penalty of perjury that the foregoing is true and correct, and

that this declaration was executed on October 21, 2020 at Sacramento County,

California.

Signed:Moses M. Sarinana

Process Server Registration No. 201554 Sacramento County, CA.Contact direct cell phone 209-495-6970