Acceptance Of Retirement Does Not Reduce Back Pay

On February 2, 2010, Sell Caldwell’s employment as a captain with the DeKalb County, Georgia Fire Rescue Department was terminated based on allegations that Caldwell (1) failed to locate the dispatch address in the course of responding to a fire; and (2) failed to take command of the scene of a fire. Caldwell appealed his termination to the County’s Human Resources and Merit System Department. On February 11, 2010, Caldwell applied for early retirement from the County in order to mitigate his loss of salary. He began receiving retirement benefits on March 1, 2010.

A hearing officer determined the Fire Department did not correctly apply the facts to the cited violations, resulting in errors of fact with regard to Caldwell’s termination. The hearing officer reversed Caldwell’s termination, a decision upheld by the County’s Merit System Council.

Despite the administrative rulings in Caldwell’s favor, the County did not reinstate Caldwell to his former position. Caldwell then brought a “mandamus” lawsuit to compel his reinstatement as fire captain and for back pay and benefits. The County defended the lawsuit, arguing that the Council did not have the authority to award Caldwell’s reinstatement.

The Georgia Supreme Court sided with Caldwell. The Court found that “the DeKalb County Code authorizes a hearing officer to ‘reverse a disciplinary action upon a finding that it is based upon an error of fact.’ That is precisely what the hearing officer determined in this case – that both grounds specified in the termination notice were based on errors of fact. The appropriate remedy then was to ‘reverse’ Caldwell’s termination by the Chief which would have the effect of placing him in the same position he would have been had he not been terminated. It is disingenuous for the County to argue that although the Code allows ‘reversal’ of the Chief’s decision, it does not contemplate reinstatement. By definition, reversal of a termination constitutes reinstatement.”

The County also argued that Caldwell gave up any right to reinstatement when he elected to receive monthly retirement benefits. Once again, the Court was unconvinced, holding that “a retiree cannot be a full-time employee of the County, but if the retiree were to give up retirement benefits, he or she could be reinstated. Caldwell acknowledges that he must relinquish his pension benefits when he is reinstated to his former position.”

Ellis v. Caldwell, 2012 WL 33092 (Ga. 2012).