Furtado v. State Personnel Board

Facts

The California Fair Employment and Housing Act (FEHA; Gov. Code § 12900 et seq.) makes it unlawful to discharge or discriminate against a person because of physical disability. (Gov. Code § 12940, subd. (a); Furtado, supra, 212 Cal.App.4th at p. 743.) But FEHA “does not prohibit an employer from … discharging an employee … who, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations.” (Gov. Code § 12940, subd. (a)(1); Furtado, at p. 743.) The “essential functions” of a job are “the fundamental job duties of the employment position the individual with a disability holds or desires.” (Gov. Code § 12926, subd. (f); Furtado, at p. 743.) These provisions framed every issue in the case.

Bruce Furtado began with the Department of Corrections and Rehabilitation as a correctional officer in 1981 and was promoted to correctional lieutenant — a sworn peace officer classification — in 1994. (Id. at p. 733.) As a correctional lieutenant he was required to certify annually in the use of a baton. (Ibid.) In December 1997 an off-duty automobile accident left Furtado with permanent injuries to his left shoulder, forearm, elbow, and hand, producing an “overall loss of grip strength, loss of range of motion, and difficulty in forming a fist.” (Id. at pp. 733–734.)

Furtado twice failed to recertify with the side handle baton. The first instructor rated him “Fail,” noting he had “very little control over [the] baton when both hands [were] required” and could not lift his left arm above his head. (Id. at p. 734.) After eight hours of additional training, a second instructor found Furtado “physically unable to complete a third of the required techniques” and “unable to grip … the baton with his left hand.” (Id. at pp. 734–735.) A fitness-for-duty examination by orthopedic surgeon William Davidson, M.D., documented severely restricted motion — 45 degrees in the left shoulder versus 180 in the right, left-hand grip strength of roughly 20 pounds versus 100 on the right — and concluded that Furtado was “profoundly compromised” in disarming or subduing an inmate and incapable of properly using a baton, with no available accommodation. (Id. at pp. 736–737.)

Furtado requested that he be relieved of the baton-certification requirement and, “if necessary,” assigned to “an administrative position” doing “some kind of lieutenant administrative duties.” (Id. at p. 734.) The Department denied that request, reasoning that waiving an essential function is not a reasonable accommodation and would violate Government Code section 1031, subdivision (f), which requires every peace officer to be “free from any physical … condition which might adversely affect the exercise of the powers of a peace officer.” (Id. at pp. 737–738.) The Department then engaged in an interactive process, sent Furtado job-opportunity bulletins, and, after Furtado wrote that he was prepared “to accept a reasonable offer as an Associate Government Program Analyst,” medically demoted him to that non-peace-officer position — one of the highest-paying non-peace-officer posts available — effective December 2004. (Id. at pp. 738–739.)

Procedural history

Furtado appealed to the State Personnel Board (SPB), contending the Department discriminated against him by denying reasonable accommodation and by medically demoting him. (Id. at p. 740.) After a nine-day evidentiary hearing, the SPB denied the appeal, concluding that the Department “was not required to reasonably accommodate” Furtado “because [he] was not qualified for the Correctional Lieutenant position,” and that the Department “properly medically demoted” him to the analyst position. (Ibid.) Furtado petitioned the Superior Court of Imperial County for a writ of administrative mandate (Code Civ. Proc. § 1094.5); the trial court denied the petition, agreeing that qualification with a baton was a necessary function and that deleting it “would fundamentally alter the nature of the position.” (Id. at pp. 740–741.) The Court of Appeal affirmed. (Id. at p. 758.)

The posture matters. Because the SPB exercises quasi-judicial powers, the reviewing court does not reweigh the evidence; it asks only whether substantial evidence supports the Board’s findings, indulging all presumptions and resolving conflicts in the Board’s favor. (Id. at p. 742.) Critically, on appeal from a denial of administrative mandamus the appellate court reviews the SPB’s findings, “not the trial court’s conclusions.” (Ibid.) Pure questions of law are reviewed de novo. (Ibid.)

Issue

The court collapsed both of Furtado’s claims into a single inquiry: “whether Furtado is able to perform the essential functions of the peace officer position of correctional lieutenant, with or without accommodation.” (Id. at pp. 741–742.) That framing carried three sub-questions: (1) was there substantial evidence that defending against, disarming, and subduing inmates — and, derivatively, baton proficiency — are essential functions of the correctional-lieutenant position; (2) if so, did FEHA’s reassignment-as-accommodation duty require the Department to place Furtado in a baton-free “administrative” lieutenant role; and (3) was the medical demotion under Government Code section 19253.5 supported by substantial evidence.

Holding

Reasoning

The court set the accommodation framework before reaching the facts. A failure-to-accommodate plaintiff must show a covered disability, status as a qualified individual, and the employer’s failure to reasonably accommodate. (Id. at p. 744, quoting Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255–256.) “Reasonable accommodation” is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Id. at p. 745, quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974.) Reassignment to a vacant position is a statutorily listed form of accommodation. (Gov. Code § 12926, subd. (o); Furtado, at p. 745.)

The reassignment duty is affirmative but bounded. Quoting Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223, the court restated the governing rule: where the requested accommodation is reassignment, “an employer must make affirmative efforts to determine whether a position is available,” but reassignment “is not required if ‘there is no vacant position for which the employee is qualified.’” (Furtado, at p. 745.) The duty does “not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights”; what FEHA demands is the “duty to reassign a disabled employee if an already funded, vacant position at the same level exists.” (Ibid.) This is the doctrinal heart of the opinion, and it cuts both ways — the employer must search, but a search that turns up no qualifying vacancy ends the inquiry.

Substantial evidence established the essential functions. Drawing on the statutory list of evidence relevant to essentiality — including “[t]he employer’s judgment” and written job descriptions (Gov. Code § 12926, subd. (f)(2)) — the court canvassed testimony from wardens and an associate warden that disarming, subduing, and restraining inmates and defending against armed inmates are core duties of every peace officer in a volatile prison, where “homicides … take place, we have riots … [and] inmates become immediately aggressive.” (Furtado, at pp. 746–747.) The court rejected Furtado’s argument that baton certification was “largely fictional and artificial,” holding that baton proficiency is a reasonable requirement precisely because the baton is “one of the methods that prison staff … use to defend themselves against armed inmates, and to disarm, subdue and apply restraints to inmates.” (Id. at pp. 748–749.)

The “administrative lieutenant” theory failed on the essential-functions logic and on Lui. Furtado argued that some lieutenant assignments are largely administrative and rarely require a baton, so he should have been placed in one. The court answered that “even if there are correctional lieutenant positions in which the employee is not called upon to use a baton on a regular basis,” every lieutenant “may at some point be called upon” to use force, because the institution reassigns lieutenants across posts as need arises. (Id. at pp. 751–752.) Citing Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 974–979, the court held that a function can be essential “even if not typically required of all officers, because [it] may be necessary to perform when mobilization of [the] entire force is required.” (Furtado, at p. 752.) An employee’s “ability to use [a baton] in those times when it is necessary could be the difference between maintaining order and safety in the institution and not being able to do so.” (Ibid.)

The Raine analogy resolved the case. The court found Furtado’s request “similar to the ‘accommodation’” rejected in Raine, where a permanently injured patrol officer sought to be kept permanently at a front-desk post. (Id. at pp. 752–753.) In effect, Raine sought “a new position that retains the benefits afforded to sworn officers but without the attendant essential functions of the sworn-officer position.” (Id. at p. 753, quoting Raine, at p. 1228.) So too here: waiving baton certification “would mean that Furtado would not have to demonstrate that he is a ‘qualified individual,’” and because no purely administrative lieutenant post exists in which prisoner contact “can be ensured” to be absent, the Department “would have to create a new ‘administrative’ position that does not currently exist.” (Id. at p. 753.) Neither is a reasonable accommodation.

The court rejected the applicant-versus-incumbent distinction. Furtado pressed Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472 as limited to job applicants, distinguishing his status as a previously qualified employee who later became disabled. The court declined to police the trial court’s reliance on Quinn at all, since review runs to the SPB. (Furtado, at pp. 753–754.) On the merits, it held the distinction immaterial: an employee who becomes disabled and can no longer perform essential functions “is essentially in the same position, for purposes of FEHA, as an applicant who does not qualify for the job.” (Id. at p. 755.) For a failure-to-accommodate claim, the plaintiff proves qualification “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,” and that standard “applies equally to an applicant … and to a person who has been employed in the position.” (Ibid., quoting Jensen, at p. 256.)

The medical demotion followed. Government Code section 19253.5 authorizes a state agency, after a medical examination and consideration of “other pertinent information,” to demote an employee who cannot perform his current position to one he can. (Furtado, at p. 756.) Because substantial evidence showed Furtado could not perform any peace-officer position but could perform the analyst job he had agreed to accept, the demotion was proper. (Id. at pp. 756–757; cf. Gonzalez v. Department of Corrections & Rehabilitation (2011) 195 Cal.App.4th 89, 92.)

Significance

Furtado is a clean restatement, in the public-safety setting, of the two-sided nature of FEHA’s reassignment duty. It confirms that the duty is affirmative — the employer “must make affirmative efforts to determine whether a position is available” — while marking its outer limit: there is no obligation to create a job, displace another worker, or excuse an essential function. (Id. at p. 745.) The opinion’s most quotable contribution is its rejection of the “carve out a desk job” theory of accommodation. Where an employer would have to manufacture a position “that does not currently exist” to retain a disabled employee in a classification whose essential functions the employee can no longer perform, FEHA does not compel it. (Id. at p. 753.)

Equally important is the court’s treatment of essential functions that are rarely exercised. Following Lui, Furtado holds that a duty performed infrequently — even one a particular incumbent may never personally face on a given assignment — is still essential if the operational reality is that any incumbent may be called to perform it. (Id. at pp. 752.) For employers whose workforce is cross-deployed in emergencies, that reasoning is a powerful shield. For employees, it warns that “I rarely do that task” is not the same as “that task is not essential.”

The limits of the holding deserve emphasis. The case arose on administrative-mandamus review of an SPB decision, so the appellate question was substantial evidence, not de novo judgment. (Id. at p. 742.) The Department also did engage in an interactive process, sent bulletins, and ultimately placed Furtado in a high-paying alternative — facts that blunt any inference of bad faith. The opinion does not bless an employer who refuses to search; it vindicates one whose search produced no qualifying vacancy.

Key quotes

“If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. … A reassignment, however, is not required if ‘there is no vacant position for which the employee is qualified.’” (Furtado, supra, 212 Cal.App.4th at p. 745.)

“What is required is the ‘duty to reassign a disabled employee if an already funded, vacant position at the same level exists.’” (Id. at p. 745.)

“[B]ecause the evidence demonstrates that there is no purely ‘administrative’ correctional lieutenant position whereby no prisoner contact can be ensured, the Department would have to create a new ‘administrative’ position that does not currently exist. … Furtado’s request that the Department essentially waive an essential function of a position is not a ‘reasonable accommodation.’” (Id. at p. 753.)

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Practice pointer

Open questions

Furtado leaves several edges unresolved. First, the court expressly declined to decide whether Quinn v. City of Los Angeles was correctly applied below, resting instead on the SPB’s reasoning — so the precise reach of Quinn‘s applicant-focused language in incumbent cases remains, at most, dictum here. (Id. at pp. 753–754.) Second, because no qualifying vacancy existed, the opinion never tests how rigorous the employer’s “affirmative efforts” must be when a marginal or part-time vacancy is arguably available; it states the duty but does not stress its floor. (Id. at p. 745.) Third, the case proceeded on substantial-evidence review of an administrative record (id. at p. 742); a FEHA jury trial on the same facts would put the essentiality of an infrequently used function squarely to the factfinder, where the Lui rationale (id. at p. 752) would be argued, not presumed. Finally, the opinion does not address whether section 1031, subdivision (f), itself independently barred any peace-officer accommodation, treating the peace-officer fitness standard as reinforcing, rather than substituting for, the essential-functions analysis. (Id. at pp. 737–738, 747.)