Agencies May Have a Duty to Accommodate Injured Police Recruits Under FEHA

On February 14, 2017, the California Second District Court of Appeal held, in the case of Atkins et al. v. City of Los Angeles, 2017 Cal. App. LEXIS 115, that an agency may be liable for failing to reassign a police recruit who is disabled due to injuries sustained during the course of training to a non-sworn position.  The Court’s Opinion is extremely lengthy and addresses multiple complex legal issues.

Factual Background

The City hired Atkins and four others as Recruit Police Officers (“Plaintiffs”).  Each of the Plaintiffs entered the Academy shortly after he was hired.  Upon successful completion of the Academy’s six-month training course, the recruits would have started a 12-month field probationary period as Police Officers.

All five were injured during training after varying lengths of time at the Academy, the longest being 3 months into training and the shortest being injured on the 3rd day of training.  All of the Plaintiffs saw City doctors who restricted their activities in various ways.  The City provided physical therapy for some of the plaintiffs and placed all of them in the “Recycle” program, which gave Plaintiffs desk jobs while they recuperated.

The Recycle program provided recruits with light-duty administrative jobs until their injuries healed and they could return (or recycle back) to the Academy.  While in the Recycle program, recruits received full compensation and benefits.  Before Plaintiffs suffered their injuries, some recruits had remained in the Recycle program until their injuries healed or they became permanently disabled.  This practice conflicted with Penal Code Section 832.4 and regulations issued by POST which require recruits to complete their training and 12-month probationary period within two years.

In September 2009, after the Plaintiffs had entered the Recycle program, the City changed its policy and began limiting injured recruits’ assignments to the Recycle program to six months.  All Plaintiffs had been in the program longer than six months. Each was told at various times that they could no longer work their administrative positions and would need to either immediately return to the Academy or be terminated.  Not being fully recovered, none of the Plaintiffs returned to the Academy and all were either terminated or resigned.  In 2012, the Department ended the Recycle program entirely.

Plaintiffs filed suit and the case proceeded to trial on three causes of action under California’s Fair Employment and Housing Act (FEHA), Gov. Code Sections 12900-12996, including discrimination, failure to accommodate and failure to engage in the interactive process.  The jury found in favor of the Plaintiffs on all three causes of action and awarded each Plaintiff past and future economic and non-economic losses with a total award of over $12 million.  The City appealed.[1]

Discrimination – Gov. Code § 12940(a)

Establishing a case for disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.  As to the second prong, the employee must establish that they are a “qualified individual”, i.e. can perform the essential functions of the job with or without accommodation.  The City argued on appeal that the Plaintiffs were not qualified individuals because they could not perform the essential functions of a police recruit.

The Court agreed finding that, in connection with a discrimination claim under Section 12940(a), the court considers whether a plaintiff could perform the essential functions of the job held — or for job applicants, the job desired — with or without reasonable accommodation.  The Court found that the undisputed evidence showed that the Plaintiffs could not perform the essential functions of a police officer or recruit, even with a reasonable accommodation since those essential functions include physically demanding tasks and none of the Plaintiffs had medical clearance to perform such tasks at the time of their separation from employment.  Thus, the Court held that substantial evidence did not support the jury’s verdict on the discrimination cause of action.

Failure to Accommodate – Gov. Code §12940(m)

The essential elements of a claim of failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff’s disability.

Like a claim for discrimination under Section 12940(a), a claim for failure to accommodate under Section 12940(m), requires a plaintiff to show that he or she is a “qualified individual” under FEHA.  However, where the plaintiff contends that an employer failed to accommodate by reassigning him or her to another position, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.

In other words, where an employer may not violate Section 12940(a), by terminating a disabled employee who cannot perform the essential functions of his or her job, even with a reasonable accommodation, the employer may violate Section 12940(m), if the employer fails to reasonably accommodate that employee by reassigning him or her to a comparable, vacant position whose essential functions the employee can perform.

FEHA requires reassignment as a reasonable accommodation for employees, but not for “applicants.”  On appeal, the City argued that FEHA did not require it to accommodate Plaintiffs by reassigning them to another position because, as “pre-probationary” employees who never completed their Academy training or probationary field assignments, Plaintiffs never qualified to become police officers and thus were not “qualified individuals” for purposes of their claim for failure to make reasonable accommodations.  In essence, the City argued that police recruits should be treated like applicants for employment in the Department, rather than employees of the Department.

The Court disagreed and found that FEHA’s protections extend to employees in training, “pre-probationary” employees and probationary employees.  Thus, the Court found that police recruits may be entitled to reasonable accommodation by reassignment in certain circumstances.

To be entitled to reasonable accommodation by reassignment, a plaintiff must first show that they performed the essential functions of their original job – in this case Police Recruit – for some period of time.  Here, the City did not contest that the Plaintiffs were able to perform the essential functions of a Police Recruit at the time they were hired, nor that each of them performed those duties, even if only for a short period of time.[2]

Second, a plaintiff seeking accommodation by reassignment must show that reassignment is “reasonable.”  FEHA does not require an employer to accommodate a disabled employee in a temporary position indefinitely, does not require the employer convert a temporary position into a permanent one and does not require an employer to create a new position to accommodate a disabled employee.  In short, such requests are ordinarily deemed unreasonable. However, the Court explained, the reasonableness of a particular accommodation must be determined in light of the employer’s policies and practices.

The Court discussed two cases to illustrate how “workplace precedents” can affect an employer’s duties under FEHA.  In Cuiellette v. City of Los Angeles, (2011) 194 Cal. App. 4th 757, a sworn police officer alleged a failure to accommodate by way of permanent reassignment to a light-duty position.  The court in Cuiellette found a violation of FEHA because LAPD had a long-standing policy of allowing sworn officers to permanently perform light duty assignments and, in fact, had so accommodated hundreds of disabled officers in that manner.

In Lui v. City and County of San Francisco, 211 Cal.App.4th 962 (2012), San Francisco had a similar policy of accommodation as was discussed in Cuiellette.  However, unlike the circumstances in Cuiellette, San Francisco Police Department (SFPD) changed its policy of allowing injured police officers to remain in light-duty jobs indefinitely long before the plaintiff in that case sought such an accommodation.

Because of the policy in force at the time the plaintiff in the Lui case became disabled, it assigned injured officers to administrative positions on a temporary basis only.  The court held that SFPD had not violated FEHA in refusing to permanently or indefinitely assign the plaintiff to a light-duty position.

The Court in Atkins found the case “more like Cuiellette than Lui.”  Because as in Cuiellette, the Department had a long-standing practice of allowing injured recruits to remain in the Recycle program indefinitely until they healed and could return to the Academy or until their disabilities became permanent.  The new policy of restricting injured recruits’ assignments in the program to six months occurred long after Plaintiffs became injured and entered the Recycle program.

The Court found that while FEHA does not require the Department to accommodate recruit officers injured after the change in policy by allowing them to remain in the Recycle program indefinitely, the City could not treat Plaintiffs differently than it had treated other recruit officers who were injured before the change in policy.  In so finding, the Court pointed out that when SFPD changed the policy at issue in Lui, it “grandfathered in” the officers accommodated under the old policy.

In sum, the Court found that substantial evidence supported that Plaintiffs’ were qualified for and capable of performing the essential functions of a position in the Recycle program and that an accommodation in those positions until they recovered fully or their disabilities became permanent was reasonable.  Thus, the Court found that the City violated FEHA Section 12940(m) by not accommodating them.

If a single cause of action is supported by substantial evidence, a judgment must be affirmed.  Thus, judgment against Los Angeles was affirmed despite the failure of the discrimination claim.

Damages

The City attacked the jury’s future economic damages awards as speculative and excessive.  In particular, the City argued that the damages the jury awarded for future economic losses were “astonishing” and “patently excessive” because Plaintiffs were “trainees who had completed only 8 hours to 18 weeks of training” and the awards assume Plaintiffs would have passed the Academy, completed their probationary periods, become career officers, and retired from the Department.

The Court agreed with the City that the damages awarded for future economic losses were speculative and that the record did not support the jury’s awards for such losses.  As such, the Court held that the City was entitled to a new trial on Plaintiffs’ claims for future economic damages.

HOW THIS AFFECTS YOUR AGENCY

The most important impact of the Atkins case is the finding that FEHA potentially applies to a police recruit that is injured while still in the Academy.  If an agency has created or maintains policies or practices under which injured recruits are permanently or indefinitely accommodated it could lead to significant liability exposure.  This is a very complex area of the law and consultation with your agency’s legal advisor is imperative before taking any action involving the issues set forth in this case.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at jrt@jones-mayer.com [for James Touchstone] or dlr@jones-mayer.com [for Denise Rocawich].

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] In its Opinion in Atkins, the Court addressed the discrimination claim and failure to accommodate claim but did not address the failure to engage in the interactive process claim.  As such, this Alert does not address that cause of action.

[2] The Court distinguished this case from two other cases in which there was no duty to accommodate. See Quinn v. City of L.A., 84 Cal. App. 4th 472, 483 (2000) [no duty to accommodate an officer who “was never qualified to be hired from the outset”] and O’Brien v. Napolitano, 2012 U.S. Dist. LEXIS 15617 (N.D. Cal. 2012) [no duty to accommodate where an employee was “never able to perform certain essential functions of her training position, not even for a single day.”]





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