Atkins v. City of Los Angeles

Facts

The California Fair Employment and Housing Act “prohibits several employment practices relating to physical disabilities.” It forbids employers from refusing to hire, discharging, or otherwise discriminating against employees because of physical disability; from failing to make reasonable accommodation for known physical disabilities; and from failing to engage in a timely, good-faith interactive process to identify effective accommodations. “Separate causes of action exist for each of these unlawful practices.” (Atkins, supra, 8 Cal.App.5th at p. 714.) This case sits at the intersection of the first two duties.

The City of Los Angeles hired Ryan Atkins, Douglas Boss, Justin Desmond, Anthony Lee, and Eriberto Orea as recruit police officers between mid-2008 and early 2009, and each entered the Los Angeles Police Department’s six-month Academy training course. Upon graduating, a recruit would have started a 12-month field probationary period as a police officer. (Id. at p. 705.) Each recruit suffered a temporary injury — a knee, ankle, groin, or back injury — within hours to weeks of starting at the Academy. City doctors restricted their activities, and the Department placed all of them in its “Recycle” program, which gave injured recruits light-duty administrative desk jobs while they recuperated. (Id. at pp. 705–706.)

To remain a recruit, an officer had to be physically capable: the recruit-officer manuals required passing a physical fitness examination, and recruits who could not pass were “recommended for termination from the Department.” On entry, each recruit signed a disclosure stating he was “physically qualified” with “no pre-existing physical limitations.” (Id. at p. 706.) Historically, “some recruits had remained in the Recycle program until their injuries healed or they became permanently disabled.” That practice, however, conflicted with the Penal Code and POST regulations requiring recruits to complete training and a 12-month probationary period within two years — the Department’s “two-year rule.” (Ibid.) The Department also used City Charter section 1014 to transfer recruits whose disabilities became “permanent and stationary” into other City positions; between 2008 and 2010 it transferred six recruits this way. (Id. at p. 708.)

In September 2009 — “[p]erhaps in response to the City’s economic difficulties” and a hard hiring freeze — a Department management team decided to enforce a six-month limit on Recycle assignments, telling recruits who had been in the program longer than six months that they had to return to the Academy or be discharged. The training-division officer in charge, Lieutenant Edgar Palmer, acknowledged that this decision “represented ‘a significant and unprecedented change’ in Department policy.” (Id. at pp. 707–708.) Each plaintiff was summoned to a meeting and told, in substance, that unless his doctor immediately cleared him to return to the Academy, he had to resign or be terminated; several were warned they would never work in law enforcement again. None obtained the necessary clearance, and the Department terminated or constructively discharged all five. (Id. at pp. 708–713.) Each plaintiff eventually recovered from his injuries, but none returned to the Department. (Id. at pp. 709, 710, 711, 713.)

Procedural history

Plaintiffs sued the City in November 2010, ultimately proceeding to trial on three FEHA causes of action: unlawful discharge from a training program based on disability; failure to accommodate; and failure to engage in the interactive process. (Atkins, supra, 8 Cal.App.5th at p. 713.) At the close of plaintiffs’ case, the City moved for nonsuit, arguing that plaintiffs were conditional employees whose sole job was to pass the Academy, that they admittedly could not do so when they separated, and that they were not entitled to accommodation. The trial court — “‘recognizing it’s a close call’” — denied the motion. (Id. at pp. 713–714.)

The jury found for plaintiffs on all three causes of action and awarded each plaintiff past and future economic and noneconomic losses, totaling “over $12 million,” with judgment entered May 21, 2014. (Id. at p. 714.) The City’s motions for a new trial and for judgment notwithstanding the verdict were denied, and the trial court awarded plaintiffs attorneys’ fees and costs of $1,632,110. The City appealed from the judgment, the order denying JNOV, and the fee order; the appeals were consolidated. (Ibid.)

Issue

Three questions framed the appeal. First, were these injured recruits “qualified individuals” for a disability-discrimination claim under section 12940, subdivision (a) — that is, could they perform the essential functions of a police recruit with or without reasonable accommodation? Second, even if not, were they entitled to reasonable accommodation by reassignment under subdivision (m), given that they were “preprobationary” trainees who had never completed the Academy — and, if so, was reassignment to the Recycle program a reasonable accommodation the City was obligated to provide? Third, was the jury’s award of future economic damages, premised on lifetime earnings as career police officers, supported by non-speculative evidence? (Atkins, supra, 8 Cal.App.5th at pp. 714–715.)

Holding

Reasoning

The discrimination claim turns on the essential functions of the job held, not the job sought by transfer. FEHA makes it unlawful to discriminate because of disability, but section 12940 “specifically limits the reach of FEHA by ‘“excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.”’” (Atkins, supra, 8 Cal.App.5th at p. 716.) Plaintiffs did not directly answer the City’s argument; instead they pointed to the positions they sought by reassignment. That, the court held, “improperly conflates the legal standards” for the subdivision (a) discrimination claim and the subdivision (m) accommodation claim. For discrimination, “the court considers whether a plaintiff could perform the essential functions of the job held — or for job applicants, the job desired,” so “the issue is whether plaintiffs could perform the essential functions of a police recruit.” (Id. at pp. 716–717.)

Those essential functions were undisputedly physical, and undisputedly beyond plaintiffs’ reach. Drawing on the statutory factors (Gov. Code, § 12926, subd. (f)(2)), the court catalogued evidence that a recruit must scale walls, pass a self-defense test, sprint, navigate an obstacle course, and drag a 150-to-160-pound dummy, and must complete Academy training and obtain POST certification — requirements that mirror the statutory command that peace officers “be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.” (Atkins, supra, 8 Cal.App.5th at pp. 717–719, quoting Gov. Code, § 1031, subd. (f).) Plaintiffs introduced no contrary evidence and did not contend they could have completed the Academy when they separated. (Id. at p. 719.)

An accommodation that eliminates an essential function is unreasonable as a matter of law for the discrimination claim. Plaintiffs’ suggested accommodations — transfer under section 1014 or indefinite assignment to the Recycle program — “would eliminate one or more essential functions of the job of a police recruit.” (Id. at p. 719.) Because “FEHA does not require employers to eliminate essential functions of a job to accommodate a disabled employee,” the employee’s burden “includes ‘showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.’” (Id. at pp. 719–720.) Plaintiffs therefore failed to prove a prima facie case of discrimination. (Id. at p. 720.)

The accommodation claim asks a different question — whether plaintiffs can perform the functions of the position sought — and probationary status is no bar. Reassignment to a vacant position is a statutory form of reasonable accommodation. (Id. at p. 721, citing Gov. Code, § 12926, subd. (p)(2).) Where a plaintiff alleges failure to accommodate by reassignment, “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.” (Id. at p. 722.) The court rejected the City’s argument that “preprobationary trainees” are categorically ineligible. Following Swanson v. Morongo Unified School Dist., it held that “an employee’s probationary status does not, in and of itself, deprive an employee of the protections of FEHA, including a reasonable reassignment,” and declined “to read into FEHA a limitation on an employee’s eligibility for reassignment based on an employee’s training or probationary status.” (Id. at pp. 723–724.) Probationary and untenured employees are “akin to at-will employees,” who are likewise protected. (Id. at pp. 724–725.)

To separate covered employees from never-qualified applicants, the plaintiff must have actually performed the essential duties of the original position. Applicants are not entitled to reassignment “because, unlike employees, they have never performed the essential functions of the original position.” (Id. at p. 722.) Distinguishing Quinn v. City of Los Angeles — where an officer “was never initially qualified for the position from which he was discharged” — the court emphasized that the City “never contended the plaintiffs were not ‘properly hired’ or could not adequately perform the essential functions of a police recruit before they were injured.” (Id. at pp. 727–728.) The EEOC Guidance, which the court found instructive, frames the inquiry around the employee’s “current position,” not the position the trainee would hold upon completing probation. (Id. at pp. 725–727.) Because plaintiffs performed a recruit’s essential functions for some time before becoming disabled, “the question then becomes whether the period of time in which plaintiffs adequately performed the duties of a police recruit makes reassignment a ‘reasonable’ accommodation,” a question of fact for the jury. (Id. at pp. 728–729.)

The City’s own past practice made reassignment to the Recycle program reasonable. While FEHA does not generally require an employer to make a temporary assignment permanent or to provide indefinite leave, “to the extent an employer’s policies or practices indicate such accommodations are reasonable, an employer may violate FEHA by not making those accommodations available to all employees.” (Id. at p. 729.) The court mapped this case onto the trilogy of Raine, Cuiellette, and Lui: an employer need not create a permanent light-duty post “absent perhaps workplace precedent suggesting its reasonableness,” but where such precedent exists the calculus changes. (Id. at pp. 729–731.) This case was “more like Cuiellette than Raine and Lui”: the Department had a “long-standing practice of allowing injured recruits to remain in the Recycle program indefinitely,” and the September 2009 six-month cutoff was Lieutenant Palmer’s own admitted “‘significant and unprecedented change.’” The City could not “treat plaintiffs differently than it had treated other recruit officers who were injured before the change in policy.” (Id. at pp. 731–732.) Substantial evidence also showed plaintiffs were qualified for the clerical Recycle duties they had in fact performed, which the City never disputed. (Id. at p. 732.)

The City did not carry its “almost impossible” burden of proving undue hardship. Undue hardship is an affirmative defense the employer must prove, and “an employer must do more than simply assert that it had economic reasons.” (Id. at pp. 733–734.) Because the jury rejected the defense, the question on appeal was whether the evidence compelled a contrary finding as a matter of law — and “‘[w]here … the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal.’” (Id. at p. 734.) The City’s hiring-freeze and staffing testimony “ostensibly tied the economic cost … to potentially lower staffing levels,” but the City “offered no evidence to explain why this would result in ‘significant difficulty or expense.’” (Id. at p. 735.) That sufficed to affirm liability, so the court declined to reach the interactive-process challenge. (Id. at p. 736 & fn. 15.)

Lifetime-career damages built on stacked assumptions were too speculative to stand. Plaintiffs’ expert calculated the present value of 25-to-33-year careers as sworn officers, but admitted her conclusions rested on five assumptions — that plaintiffs would graduate the Academy, complete probation, like the job, stay until retirement, and stay five more years for added benefits — and that “‘[t]his is what I do on most of the cases.’” (Id. at pp. 737, 740.) The City’s failure to object did not forfeit its sufficiency argument, because “[c]ompetent evidence is not necessarily substantial evidence.” (Id. at pp. 739–740.) Given plaintiffs’ youth, the brief time each had spent in the Academy, and the fact that “none of them had worked a day as a sworn police officer,” the expert “‘simply assumed’” their entire careers without evidentiary support. (Id. at pp. 740–742.) The court reversed the future-economic-damages award, vacated the fee award, and remanded for a new trial limited to those damages. (Id. at pp. 742–743.)

Significance

Atkins is a leading published authority for the proposition that the “qualified individual” inquiry is claim-specific: the reference point for a discrimination claim under subdivision (a) is the job the plaintiff held (or, for an applicant, the job desired), while for an accommodation-by-reassignment claim under subdivision (m) it is the position to which reassignment is sought. (Atkins, supra, 8 Cal.App.5th at pp. 716–717, 722.) A plaintiff who cannot perform the essential functions of his existing job — and so loses the discrimination claim — may still prevail on the accommodation claim by showing he can perform the functions of a different, vacant position.

The decision also resolves, for trainees, a question Hastings had left open: probationary and “preprobationary” employees in training are within FEHA’s protection and may be entitled to reassignment, so long as they actually performed the essential functions of their original position for some period before becoming disabled. (Id. at pp. 723–729.) That holding closes a gap defendants had tried to exploit by recharacterizing injured trainees as mere “applicants.”

Finally, Atkins reinforces the “workplace precedent” principle of the Cuiellette/Raine/Lui line: an accommodation FEHA would not otherwise compel can become required when the employer has voluntarily provided it to comparable employees in the past, and an employer that changes such a policy may not apply the change retroactively to those already accommodated. (Id. at pp. 729–732.) On the damages side, the opinion is a useful brake on speculative front-pay awards for early-career plaintiffs. (Id. at pp. 740–742.)

Key quotes

“The employee’s burden includes ‘showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.’” (Atkins, supra, 8 Cal.App.5th at p. 720.)

“We decline to read into FEHA a limitation on an employee’s eligibility for reassignment based on an employee’s training or probationary status.” (Id. at p. 724.)

“[H]aving created the Recycle program and allowed past recruit officers to stay in the program until they recovered or became permanently disabled, the City could not deny the same accommodation to plaintiffs, who entered the program before the City’s change in policy.” (Id. at pp. 731–732.)

“An expert’s opinion is only as good as the facts on which it is built.” (Id. at p. 742.)

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Practice pointer

Open questions

The court expressly left several issues unresolved. It did not decide whether a transfer under City Charter section 1014 to another City department “was reasonable and supported by the evidence.” (Atkins, supra, 8 Cal.App.5th at p. 729, fn. 11.) It did not reach the City’s challenge to the jury’s finding that the City failed to engage in the interactive process, because affirming liability on the accommodation claim made the question unnecessary. (Id. at p. 736 & fn. 15.) It declined to address the amici’s argument that FEHA does not apply to purely temporary disabilities “‘with absolutely no long-term or permanent impact,’” because the City did not contest that plaintiffs’ injuries were physical disabilities. (Id. at p. 716.) It also declined to reach whether recruits hired into “temporary training positions” under the Civil Service Rules might be outside the reassignment duty on a Jenkins theory, because the parties did not brief it — while noting the City’s own past accommodation practice was “inconsistent with the position that such recruits were mere ‘temps.’” (Id. at p. 729, fn. 10.) Finally, the proper, non-speculative measure of future economic damages was left to the trier of fact on remand. (Id. at pp. 742–743.)