Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy

In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.

Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.

The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.

PERB Greatly Expands Representation Rights to Include Interactive Process Meetings

The Americans with Disabilities Act requires an employer to accommodate an employee’s disability. The employer must meet with an employee and discuss reasonable accommodations. Does an employee get a representative at these meetings? The Public Employment Relations Board answered this question with a resounding “yes” in Sonoma County Superior Court (2015) PERB Decision No. 2409-C.

In the case, a trial court employee was diagnosed with a serious illness. She requested a meeting with her employer to discuss reasonable accommodations. She wanted a union representative during the meetings. The employer said no. The union filed an unfair practice charge.

PERB held an employee has a right to representation during an interactive process meeting. An employee may have a representative present in two contexts. First, an employee has a right to a representative during a discipline proceeding. Second, the employee has a right to a representative when engaging in labor activities. This includes activities like filing a grievance or bargaining.

PERB decided an ADA meeting is like a grievance. The meeting is a negotiation on the appropriate accommodation. This directly concerns working conditions. This is the perfect scenario for a labor representative. The representative has unique knowledge of the labor relationship. The representative can use this knowledge to negotiate with the employer. Thus, the employee must be allowed a representative during an interactive meeting.

Employees are often stressed and concerned when engaging in the interactive process. Employers can take advantage of this stress and exploit the employee. A representative can protect the employee and level the playing field during these negotiations. 

CDCR Failed to Provide Reasonable Accommodations

In Cohen v. CDCR (2nd DCA, B226762) December 22, 2011, 2011 WL 6739621, the Court of Appeal found CDCR failed to provide reasonable disability accommodations to a correctional employee. The employee sufferred an injury which limited her ability to carry heavy items and requested accommodations. Her doctor determined she could perform the essential job functions and suggested a reasonable accommodation of a cart to assist her in moving about the large facility.

However, CDCR ultimately moved her office to an area of the prison approximately one mile away from where she treated her patients which made it difficult for her to complete work in her office. She also had to find a bench or a vacant room to complete her work resulting in her having to transport all of her files as she moved about the facility. During this time, she missed several days of work and ended up taking 392 more hours of leave than she was allowed.

The Court found that if CDCR had reasonably accommodated the employee's limitations, her attendance would have been sufficient. The Court further found the employer had not offered a reasonable accommodation, noting all other employees had an office space in an appropriate place to meet with patients.

Court Holds LAPD Failed to Accommodate Disabled Police Officer

In Cuiellette v. City of Los Angeles (April 22, 2011) --- Cal.App.4th ---, the Second District of the Court of Appeal held the Los Angeles Police Department liable for disability discrimination after it terminated a disabled police officer.

LAPD police officer Rory Cuiellette worked for the Department for several years before he was injured on the job and placed on disability leave. He was found 100% disabled on his workers’ compensation claim and remained on leave for several months before contacting the Department about coming back to work.   His doctor said he could do administrative work only.  The Department assigned him to the Fugitive Warrant Unit in a “purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse.”  However, after just a couple of days, the Department sent him home because he was found 100% disabled.

The Court held the LAPD’s actions constituted disability discrimination under the Fair Employment and Housing Act because the City failed to accommodate Officer Cuiellette’s disability.  A jury decided the LAPD failed to accommodate Cuiellette and awarded $1,571,500 in damages.  On appeal the City argued Cuiellette’s disability meant he could not perform all of the “essential duties” of police officers and therefore the City had no choice but to let him go.  The Court disagreed, noting the LAPD had several permanent “‘light duty’ assignments…for the specific purpose of accommodating disabled officers who wanted to continue to work.”

In reaching its decision, the Court relied heavily on a similar case involving a firefighter.  In Stone v. City of Mount Vernon (2nd Cir. 1997) 118 F.3d 92, a firefighter was injured in an off-duty accident.  After rehabilitation, he asked to work light duty in the Department’s Fire Alarm Bureau.  The Fire Department refused, claiming firefighters had to be able to do fire suppression even if it was not their primary job.  However, the Court decided the real question was whether a firefighter could do a particular assignment, noting other people spent their career in the Fire Alarm Bureau without doing fire suppression.   In both cases, the Court stressed permanent light duty work was available.  The Court noted the outcome might be different if the LAPD only had temporary light duty positions for police officers.