Cuiellette v. City of Los Angeles

Facts

The California Fair Employment and Housing Act makes it unlawful for an employer to discriminate against an employee because of physical disability (Gov. Code, § 12940, subd. (a)), but that proscription does not reach persons who, even with reasonable accommodation, cannot perform their essential duties (§ 12940, subd. (a)(1)). Separately, subdivision (m) makes it an unlawful employment practice to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” “Reasonable accommodation” includes “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired” (Cuiellette, supra, 194 Cal.App.4th at pp. 765–766).

Rory Cuiellette was an LAPD officer who was injured, placed on disability leave, and obtained a 100 percent total permanent disability rating in a workers’ compensation proceeding. In the spring of 2003, he contacted a former colleague, Detective Bokatich, to return to the fugitive warrants unit. His treating physician sent the City a note authorizing “permanent light duty — administrative work only,” without specifying restrictions (id. at p. 761). The City allowed him back; he reported on May 27, 2003, and was assigned to the “court” or “renditions” desk — “a purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse to deliver papers” (ibid.). He performed the position without incident for several days, including computer training and a day of training, before a supervisor informed him on June 3, 2003, that the City could not allow him to work because he was “100% disabled” (id. at pp. 761–762).

The trial court found the City had a “longstanding policy and practice” of giving sworn officers light-duty assignments that did not entail essential peace-officer functions such as making arrests, taking suspects into custody, and emergency driving (id. at p. 762). A lieutenant testified that over twelve years his “marching orders” were to accommodate disabled officers, and the City had accommodated hundreds; Detective Bokatich testified he had helped reassign as many as 25 disabled officers into the fugitive warrants unit (ibid.). The court found the City “maintained permanent ‘light duty’ vacancies in the drug testing and fugitive warrants units for the specific purpose of accommodating disabled officers who wanted to continue to work” (id. at pp. 762–763). Plaintiff had previously worked the same unit as an investigator and performed the administrative duties well on his return; there was no evidence his disabilities compromised that work (id. at p. 763). The court found the decision to send him home was instigated not by his medical restrictions but by a third-party workers’ compensation administrator, Cambridge Associates, whose concern was that the City could not place a person rated “100% disabled” for workers’ compensation purposes (id. at pp. 764–765).

Procedural history

The case reached the Court of Appeal “for the third time” (Cuiellette, supra, 194 Cal.App.4th at p. 760). In the first appeal, the court reversed a summary judgment for the City, holding plaintiff was not judicially estopped by his workers’ compensation position and that his 100 percent disability rating was not, as a matter of law, a legitimate nondiscriminatory reason for the adverse action (ibid.). In the second appeal — after a $1,571,500 jury verdict for plaintiff on his disability-discrimination claim — the court held the trial court had erred by failing to instruct the jury that plaintiff had to prove he could perform the essential duties of a police officer with or without reasonable accommodation; because the challenge went to liability and not damages, retrial was limited to liability, “including whether plaintiff was able to perform the essential duties of a police officer with or without reasonable accommodation” (id. at pp. 760–761).

Before retrial, plaintiff filed a first amended complaint that retained his discrimination claim (§ 12940, subd. (a)), added a failure-to-accommodate claim (§ 12940, subd. (m)), and dropped his wrongful-termination cause of action. The parties then “tried the liability issues to the trial court” (id. at p. 761). The court issued a statement of decision finding the City liable on both theories, and the prior $1,571,500 damages award stood. The City appealed, and the Court of Appeal affirmed (id. at pp. 760, 773).

Issue

The City framed its challenge “on a single ground”: that substantial evidence did not support liability because plaintiff could not perform the essential duties of a police officer — defined to include field work, forcible arrests, emergency driving, and arrest/emergency training — with or without accommodation, even if he could perform the essential duties of the court desk position (Cuiellette, supra, 194 Cal.App.4th at pp. 765, 768). The precise question, then, was whether the “qualified individual” inquiry is measured against the essential functions of the police-officer title plaintiff nominally held, or against the essential functions of the permanent light-duty court desk position into which the LAPD had placed him under its accommodation policy (id. at pp. 768–769).

Holding

Reasoning

Deferential review of a bench-trial statement of decision. Because liability was retried to the court, the panel reviewed the statement of decision for substantial evidence, resolving all conflicts and reasonable inferences in support of the judgment, declining to reweigh evidence, and binding itself to the trial court’s credibility findings; it reviewed de novo only the legal question of what plaintiff “had to show in order to prevail on his FEHA claim” (Cuiellette, supra, 194 Cal.App.4th at pp. 765–766). The City did not challenge the trial court’s underlying factual findings, so the panel quoted the statement of decision “at length” (id. at p. 761).

The qualified-individual inquiry follows the position sought, not the title held. The court’s central move was to reject the City’s title-driven framing. It held that “a ‘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. 767, quoting Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256). Because the LAPD maintained permanent light-duty positions staffed with officers who could not perform all essential police-officer functions, the inquiry was confined to the essential duties of the assignment plaintiff actually held and sought to keep (id. at p. 769). Lieutenant Lutz’s testimony quantified the practice: of roughly 8,500 sworn officers, about 3,000 worked with medical restrictions, and about 250 worked “permanent light duty positions that would not allow them to work the field” (ibid.).

Reassignment doctrine and its limits. The panel restated the settled architecture of FEHA reassignment: where an employee cannot be accommodated in the existing position and reassignment is sought, the employer must make affirmative efforts to find an available position, but reassignment is not required if “there is no vacant position for which the employee is qualified,” and the duty does not require creating a new job, bumping or moving another employee, promoting the disabled employee, or violating another employee’s rights; what is required is “the ‘duty to reassign a disabled employee if an already funded, vacant position at the same level exists’” (id. at pp. 766–767, quoting Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223; see § 12926, subd. (n)). An employer is “relieved of the duty to reassign” only on undue hardship or the absence of a vacant qualifying position, and is “not obligated … to make a temporary position available indefinitely once the employee’s temporary disability becomes permanent” (id. at pp. 767–768).

Distinguishing Raine: temporary versus institutionalized light duty. The court engaged Raine directly because it cut both ways. In Raine, a Burbank officer was placed in a front-desk post normally staffed by civilians but “also reserved as a temporary light-duty assignment for police officers recovering from injuries,” and the court held the city had no FEHA duty to make that temporary assignment permanent (id. at p. 769). Cuiellette was distinguishable “because the LAPD did not at the time in issue restrict the placement of disabled officers into temporary light-duty jobs” (ibid.) — the LAPD’s posts were maintained permanently and as a matter of policy, not as a recovery waystation.

Federal authority: Stone and the rejection of the “title” focus. The court drew on Stone v. City of Mount Vernon (2d Cir. 1997) 118 F.3d 92, where a paraplegic firefighter sought a light-duty Fire Alarm Bureau assignment and the Second Circuit reversed summary judgment, faulting the district court for giving “undue weight to the title of ‘firefighter’” (id. at p. 770). The proper focus, Stone held, “is on the fundamental job duties of the position that the person with a disability desires, rather than solely on the title held by a person occupying that position or the other positions occupied by most persons holding that title” (id. at pp. 770–771). The panel treated ADA decisions as instructive given the parallel statutory text (id. at p. 770, fn. 2). Applying that lens, the trial court “properly focused on the essential functions of the court desk position, the position plaintiff sought, and not on the essential functions of the police officer position, the job title plaintiff held” (id. at pp. 771–772).

Workers’ compensation and FEHA are independent inquiries. The court endorsed the trial court’s reasoning that a 100 percent disability rating in a workers’ compensation proceeding is “beside the point because workers compensation and FEHA require separate inquiries” (id. at p. 763). The decision to send plaintiff home rested on Cambridge Associates’ workers’-compensation-driven concern, with supervisors deferring to that “presumed expertise” rather than independently evaluating plaintiff under FEHA (id. at pp. 764–765). Having placed plaintiff in the light-duty assignment, the City “had an independent duty to comply with FEHA” and “an affirmative duty to engage in an interactive process,” which it breached by summarily sending him home (id. at pp. 764–765). Because there was “no showing or claim” that the placement or policy caused undue hardship, substantial evidence supported liability on both the discrimination and accommodation theories (id. at p. 772).

Significance

Cuiellette is a leading California authority for the proposition that an employer’s own accommodation practice can define the universe of “essential functions” against which the qualified-individual element is measured. Once an employer institutionalizes permanent light-duty posts and staffs them with disabled employees, it cannot later disqualify such an employee by pointing to the field or strenuous functions of the title he nominally carries. The opinion crystallizes the Jensen/Raine “position sought, not position held” rule and imports the Second Circuit’s title-versus-function analysis from Stone into FEHA practice (Cuiellette, supra, 194 Cal.App.4th at pp. 767, 769–772).

Equally important is the firewall the case draws between the workers’ compensation and FEHA systems. A “100% disabled” rating obtained in a comp proceeding does not, standing alone, establish that an employee is unqualified under FEHA; the two regimes ask different questions, and deference to a comp administrator’s view does not discharge the employer’s independent FEHA duties (id. at pp. 763–765). The case also illustrates the practical durability of a bench-trial liability finding: where the employer does not challenge the underlying facts, substantial-evidence review is formidable (id. at p. 761).

The decision’s reach is narrow by its own terms. The court rested on the LAPD policy in effect at the relevant time and “express[ed] no opinion as to the FEHA requirements under later policies or other factual scenarios” (id. at p. 772). It also reaffirmed that an employer need not make a temporary assignment permanent or hold a temporary position open indefinitely once a temporary disability becomes permanent (id. at pp. 767–768) — the dispositive distinction being that LAPD’s posts were not temporary recovery slots but permanent, policy-driven placements.

Key quotes

“Because the LAPD maintained permanent light-duty positions that it staffed with police officers who could not perform all of the essential duties of a police officer, the relevant inquiry is whether plaintiff was able to perform the essential duties of the light-duty assignment he was given on his return to work and not whether he was able to perform all of the essential duties of a police officer in general.” (Cuiellette, supra, 194 Cal.App.4th at p. 769.)

“Because plaintiff was qualified to perform the essential duties of the court desk position and was placed in that position pursuant to the LAPD’s accommodation policy then in effect, his removal from that position based on the 100 percent total permanent disability rating plaintiff received in the workers’ compensation proceeding violated the accommodation provisions of section 12940, subdivision (m).” (Id. at p. 772.)

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Practice pointer

Open questions

The court expressly reserved “the FEHA requirements under later policies or other factual scenarios,” confining its holding to the LAPD policy in effect when plaintiff was sent home (Cuiellette, supra, 194 Cal.App.4th at p. 772). It thus did not decide whether an employer that lawfully discontinues a permanent light-duty program may then remove employees previously accommodated under it. The opinion also leaves intact, without delineating its outer boundary, the rule that an employer need not convert a temporary assignment into a permanent one once a temporary disability becomes permanent (id. at pp. 767–768) — leaving open how courts should classify positions that are neither purely temporary recovery slots nor formally designated “permanent light duty.” And because the City did not contest the underlying facts, the panel had no occasion to address how the essential-functions analysis applies where the existence or permanence of the light-duty practice is genuinely disputed (id. at p. 761).