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.

Stress Caused by a Supervisor is Not a Disability

The California Court of Appeal recently reaffirmed that stress caused by a supervisor is not a disability under the Fair Employment and Housing Act ("FEHA"). To prove a violation of FEHA a plaintiff must demonstrate some other source of the stress to demonstrate a disability.

In Higgins-Williams v. Sutter Medical Foundation, the Plaintiff alleged her employer violated FEHA. FEHA requires that employers meet with employees who have disabilities and find a reasonable accommodation for those employees. Failure to engage in this interactive process constitutes a violation of the statute.

The plaintiff alleged she suffered from debilitating stress due to her interactions at work with human resources and her manager. Her physician diagnosed her as having adjustment disorder with anxiety. Her physician cited her supervisors as the cause of her mental issues. The plaintiff took an extended medical leave to address her stress. Her physician recommended she be assigned to different supervisors. Sutter, her employer, did not provide the plaintiff with new supervisors. After months of negotiations, terminated the plaintiff's employment. The plaintiff sued, alleging Sutter failed to meet with her in good faith and accommodate her disability in violation of FEHA.

The California Court of Appeal for the Third District decided stress caused by a supervisor is not a disability under FEHA. To establish a case of mental disability discrimination under FEHA, a plaintiff must show three elements. First, that she suffers from a mental disability. Second, that she is qualified to do the job with or without reasonable accommodation. Third, that the employer took an adverse employment action against her because of the disability.

Here, the court upheld a prior decision ruling the inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance is not a disability under FEHA. The only cause of the plaintiff's stress in this case was her supervisors. Thus, she was not disabled under FEHA. Without a disability there is no need to accommodate the employee and the employer incurs no liability under FEHA.

Assemblymember Eggman Introduces Bill to Slash Interest Due on Debts to Employees, Others

Under current law, when employees or labor associations win a judgement against a public entity, the agency has to pay interest on the debt until they pay it off.  The interest rate is set at 7% or 10%, depending on the type of case.  Now Assemblymember Susan Eggman has introduced AB 748 to let cities and counties pay minimal interest on these debts, jeopardizing employees' and unions' rights across the State.

Eggman's law would cap the interest a public agency has to pay at no greater than the rate on the "Pooled Money Investment Account."  That rate has been less than 1% for the past three years.  As a result, employees who are illegally terminated or denied their wages would receive much less interest on their awards than the interest they have to pay on their personal loans, mortgages, and credit card payments.  Cities win, employees lose.  Eggman previously served on the Stockton City Council were she voted to withhold employees' wages, even though they were guaranteed by labor contracts.

Courts Finds Some Limits to Duty to Accommodate Disabled Peace Officers

In Lui v. City and County of San Francisco (2012) 211 Cal. App. 4th 692, the California Court of Appeal, First Appellate District, ruled it may not be discriminatory for a department to terminate a peace officer who cannot perform all the essential duties of an officer, when the peace officer’s limitations are due to a disability. After suffering a major heart attack, a 24-year veteran retired after he was informed by his department that there were no administrative positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. He then sued under California’s Fair Employment and Housing Act (FEHA) alleging discrimination and failure to accommodate. Following a court trial, judgment was entered in favor of the City and County of San Francisco and on appeal, the appellate court affirmed.

The San Francisco Police Department had a general order which stated that if an officer is assigned to an administrative position, he or she must be able to perform the essential functions of the full duty police officer, such as making forcible arrests, pursuing fleeing suspects and responding to emergency situations. The Court noted not all police officer positions exist for the purpose of enforcing the law and protecting the public and that officers in administrative positions are not frequently required to engage in strenuous duties. However, in this case, the Court said thse duties are essential functions of administrative positions because that department has a legitimate need to be able to deploy officers in administrative positions in the event of emergencies and other mass mobilizations.

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.