Lui v. City and County of San Francisco

Facts

The California Fair Employment and Housing Act makes it unlawful “[f]or an employer, because of the … physical disability [or] mental disability, … of any person, … to bar or to discharge the person from employment” (Gov. Code, § 12940, subd. (a)), and separately to “fail … to make reasonable accommodation for the known physical or mental disability” of an employee (Gov. Code, § 12940, subd. (m)). But the statute “specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties” (Lui, supra, 211 Cal.App.4th at p. 970). The fault line in Lui runs through that exclusion.

Kenneth Lui was hired by the San Francisco Police Department in 1981. In December 2005 he suffered a major heart attack requiring five stents and was diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease (Lui, supra, 211 Cal.App.4th at p. 965). After 11 months of disability leave at full pay, he returned in November 2006 to a 365-day temporary modified duty (TMD) assignment doing light-duty work in the records room (Ibid.).

That assignment ran under Department General Order 11.12, adopted in March 2004 after negotiations with the Police Officers Association. DGO 11.12 eliminated permanent light-duty assignments for officers injured after March 2004 and capped TMD assignments at one year (Lui, supra, 211 Cal.App.4th at p. 965). The policy responded to a swelling accommodated-officer population: permanent light-duty assignments had grown from 15 officers in 1983 to roughly 210 by 2003 — about 10 percent of the sworn force — and the Department sought to shrink that pool so that more officers would be available for deployment (Id. at pp. 965–966). Officers accommodated before March 2004 were “grandfathered in,” and the number in permanent light-duty assignments fell from 210 to 45 by September 2010 (Id. at p. 966).

An officer who returns to full duty after a TMD assignment must be able to perform the essential functions of the full-duty officer position — including physically strenuous tasks — even if placed in an administrative post. Those functions appear on the Department’s “Sworn Members Essential Job Functions” list (the EJF List), comprising 11 groupings of duties, several physically strenuous: making forcible arrests, pursuing fleeing suspects, and responding to emergency situations (Lui, supra, 211 Cal.App.4th at p. 966).

Lui’s cardiologist repeatedly cleared him only for non-strenuous work. In August 2007 the doctor wrote that Lui “may return to full duty … . However, because he has coronary artery heart disease, his responsibilities should not include physically strenuous work” (Lui, supra, 211 Cal.App.4th at pp. 966–967). A September note added that he “should avoid physically strenuous work and minimize physical contact,” and in response to the Department’s request to clarify whether Lui could perform an officer’s duties, the cardiologist stated that “because of [Lui’s] coronary heart disease he should not participate in work requiring strenuous physical activity” (Id. at pp. 967–968). The ADA coordinator told Lui there were no vacant sworn positions consistent with those restrictions (Id. at p. 967).

Lui was offered a 60-day citywide search for non-sworn vacancies but declined it because moving out of a sworn position would diminish his police pension; he was likewise uninterested in non-sworn work for the same reason (Lui, supra, 211 Cal.App.4th at pp. 967–968). He applied for one accommodated sworn position — a language-liaison post for which the chief had waived the EJF List requirement — but it went to another disabled officer (Id. at p. 967). Lui ultimately retired and took an industrial disability retirement, effective April 25, 2008 (Id. at p. 968).

Procedural history

Lui sued in May 2008, alleging five FEHA causes of action: disability discrimination, failure to accommodate, failure to prevent discrimination, retaliation, and refusal to engage in the good-faith interactive process (Lui, supra, 211 Cal.App.4th at p. 968). In April 2010 the trial court dismissed the retaliation claim on the City’s motion for summary adjudication (Ibid.). The four remaining claims proceeded to a court trial, after which the trial court issued a statement of decision (later amended) ruling for the City and entered judgment in March 2011 (Ibid.).

Because the dispositive claims were resolved at a bench trial rather than on summary judgment, the appeal turned on sufficiency of the evidence. The Court of Appeal reviewed the essential-functions finding for substantial evidence, while treating questions of statutory interpretation and the application of a statutory standard to undisputed facts as questions of law subject to de novo review (Lui, supra, 211 Cal.App.4th at pp. 969, 974). On appeal Lui did not challenge the summary-adjudication dismissal of his retaliation claim, forfeiting it, and his failure-to-prevent theory was likewise forfeited for lack of reasoned argument (Id. at p. 970, fn. 7).

Issue

The court framed “the key issue on appeal” as “whether the record supports the trial court’s finding that the duties in the EJF List are essential functions of the administrative positions sought by plaintiff” — and, in particular, whether duties more typically performed by patrol officers can be essential to administrative posts because the Department has a legitimate need to deploy administrative officers during emergencies and mass mobilizations (Lui, supra, 211 Cal.App.4th at pp. 968–969). A second, antecedent question was who bears the burden of proof on essential functions when, as here, the employer disputes the employee’s ability to perform.

Holding

Reasoning

The qualified-individual exclusion frames everything. The court began with the statutory architecture: although section 12940 proscribes disability discrimination, it does not prohibit discharging an employee who, because of disability, “is unable to perform his or her essential duties even with reasonable accommodations” (Lui, supra, 211 Cal.App.4th at p. 970, quoting Gov. Code, § 12940, subd. (a)(1)). To prevail on either a discrimination or a failure-to-accommodate claim, then, Lui “was required to show that he was able to perform the essential functions of the administrative positions he sought with or without reasonable accommodation” (Id. at p. 971). “Essential functions” are the position’s fundamental duties, not its marginal ones, and identifying them is a “highly fact-specific inquiry” (Ibid.). Because the FEHA and ADA definitions are nearly identical, the court treated federal ADA authority as instructive (Id. at p. 971, fn. 9).

The burden-of-proof question, reserved. The court squarely confronted the assignment’s central puzzle and then declined to resolve it. It was “clear” that the plaintiff bore the ultimate burden of proving he is a qualified individual (Lui, supra, 211 Cal.App.4th at p. 972). What was “less clear” was “whether that burden included the burden of proving what the essential functions of the position are, rather than just plaintiff’s ability to perform” them (Ibid.). The court canvassed the federal rule that “an employer who disputes the plaintiff’s claim that he can perform the essential functions must put forth evidence establishing those functions,” but it observed that those cases described the employer’s obligation as a “burden of production,” which “is not the same as saying the employer bears the burden of proof on the issue at trial,” and that several arose on summary judgment (Ibid., quoting Bates v. United Parcel Service, Inc. (9th Cir. 2007) 511 F.3d 974, 991). The court concluded it “need not and do[es] not decide … which party bore the burden of proof on the issue at trial because, even if defendant bore the burden of proving the duties in the EJF List are essential functions … the trial court’s findings are supported by substantial evidence” (Id. at pp. 972–973). It added, pointedly, that if Lui bore the burden he would face an even steeper climb — having to show the evidence “compelled a judgment in his favor” (Id. at p. 973, fn. 10).

The “limited number of employees” rationale carries the day. The Department had argued all three section 12926(f)(1) rationales, but the court rested on subdivision (f)(1)(B): a function may be essential “because of the limited number of employees available among whom the performance of that job function can be distributed” (Lui, supra, 211 Cal.App.4th at pp. 971–972). The court pointedly declined to endorse the other two rationales. As to (f)(1)(A) — the reason the position exists — it noted that administrative officers “primarily perform a range of other functions,” so “[a] strong argument can be made” that those administrative tasks are why the positions exist (Id. at p. 973). As to (f)(1)(C) — specialized expertise — the evidence “arguably is insufficient” because administrative officers are not assigned for their expertise in patrol duties (Id. at p. 974). The decisive logic was numerical: “Because the Department only has a limited number of full duty officers, for each officer in a modified-duty assignment, there is one less officer available to be deployed in an emergency” (Ibid.).

The deployment evidence. As of September 2010 the Department had 2,266 sworn officers but only 1,872 available for deployment — 99 short of the 1,971 mandated by the City Charter (Lui, supra, 211 Cal.App.4th at p. 974). Trial testimony documented full mobilizations during the 1989 Loma Prieta earthquake, the 2003 Iraq-invasion protests, the Beijing Olympics torch run, and preparations for the Mehserle verdict — events at which all full-duty officers, including those in administrative assignments, were pressed into the field for 12-hour shifts (Id. at pp. 974–975). Even with over 2,000 officers, the Department could deploy only 300 to 400 at a time and might need mutual aid from neighboring jurisdictions (Id. at p. 975). DGO 11.12 itself “substantially increased the size of the pool of full duty officers available for mobilization” by cutting permanent accommodations from 210 to 45 (Id. at p. 976).

Deference to the employer’s operational judgment. Lui argued the Department’s readiness rationale rested on no studies or formal analyses, but the court found no authority requiring such proof and declined to “second-guess the Department’s judgment, supported by the POA, that significantly increasing the size of the pool of full duty officers … is important to accomplish the Department’s public safety mission” (Lui, supra, 211 Cal.App.4th at pp. 976–977). Echoing the federal cases, the court noted that “being prepared to respond to unexpected events is, in part, precisely what defines a police officer” (Id. at p. 977, quoting Holbrook v. City of Alpharetta (11th Cir. 1997) 112 F.3d 1522, 1528).

The seven statutory evidence categories confirm the finding. The court then worked through each section 12926(f)(2) factor (Lui, supra, 211 Cal.App.4th at pp. 977–979). The Department’s judgment (factor A) and its job announcement (factor B) both treated the strenuous duties as essential, though the court cautioned that an employer “may not turn every condition of employment which it elects to adopt into … an essential job function, merely by including it in a job description” (Id. at p. 978). Time spent (factor C) was “the weakest category” because administrative officers spend most of their time on administrative work — but weakness in this one factor “is not determinative,” and a function “need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential” (Id. at pp. 978–979). The consequences of non-performance (factor D), the collective-bargaining terms (factor E), and the work experience of past and current administrative officers (factors F and G) all lent support, the last because such officers were periodically required to perform field patrol (e.g., two days every nine weeks, or monthly beats) (Id. at p. 979).

Distinguishing the plaintiff’s leading authorities. Lui relied chiefly on Cripe v. City of San Jose (9th Cir. 2001) 261 F.3d 877 and Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757. The court distinguished both. Cripe reversed a summary judgment because San Jose capped its disabled officers at 30, so reassigning them among non-modified posts “would [not] have an effect on the overall ability of the [police d]epartment to respond to emergencies” — the same 30 officers would be unavailable regardless (Lui, supra, 211 Cal.App.4th at pp. 980–981, quoting Cripe, at p. 888). San Francisco, by contrast, was accommodating roughly 210 officers before DGO 11.12, so the trial court could find the policy justified by genuine readiness concerns; and Cripe‘s summary-judgment posture differed from the substantial-evidence review of a post-trial finding here (Id. at p. 981 & fn. 18). Cuiellette was distinguishable because the LAPD maintained permanent light-duty positions, making the relevant inquiry whether the plaintiff could perform that light-duty job; Cuiellette supports a duty to place disabled officers in existing permanent light-duty posts but “does not support the proposition that employers are required to create permanent light-duty assignments” (Id. at pp. 982–983). San Francisco’s TMD posts were temporary only, making the case “like Raine and unlike Cuiellette” (Id. at p. 983).

Supporting authority and the application to Lui. The court aligned itself with cases holding strenuous emergency duties essential to non-patrol law-enforcement posts despite infrequent use — Champ v. Baltimore County, Kees v. Wallenstein, and Martin v. Kansas — and distinguished Stone v. City of Mount Vernon, where the record showed administrative firefighters had never been asked to perform fire suppression (Lui, supra, 211 Cal.App.4th at pp. 983–984). Finally, substantial evidence supported the finding that Lui himself could not perform the strenuous duties: his cardiologist’s contemporaneous 2007 restrictions controlled — the relevant time being termination, not a later examination — and the doctor testified Lui risked a heart attack if forced to sprint 25 yards or struggle with a suspect (Id. at pp. 984–985 & fn. 20).

Significance

Lui is a leading California authority for the proposition that an essential function need not be frequently performed — or even performed by most incumbents most of the time — to be essential, where the employer has a legitimate operational need to keep every worker capable of performing it when the rare occasion demands. The decision anchors that conclusion in Government Code section 12926, subdivision (f)(1)(B)’s “limited number of employees” rationale, supplying a doctrinal vehicle for public-safety employers (and others with surge-capacity needs) to defend physical-capability requirements across an entire job classification, including desk-bound posts.

The opinion also clarifies the FEHA accommodation landscape: an employer must place a disabled employee in an existing permanent light-duty position, but FEHA does not require an employer to create one, or to convert a temporary modified-duty assignment into a permanent exemption from essential functions (Lui, supra, 211 Cal.App.4th at p. 985). DGO 11.12’s design — temporary modified duty capped at one year, no new permanent light duty — survived precisely because it was tied to that distinction.

The limits matter. The holding is a substantial-evidence affirmance of a post-trial finding, not a ruling that strenuous duties are essential as a matter of law; the same record on summary judgment, as in Cripe and Stone, could yield a triable issue. The court also reserved the burden-of-proof question, declined to endorse the (f)(1)(A) and (f)(1)(C) rationales, and acknowledged that the employer “may not turn every condition of employment … into an essential job function … merely by including it in a job description” (Lui, supra, 211 Cal.App.4th at p. 978). The “limited number of employees” logic worked here because the Department documented a genuine deployment shortfall — not because incantation suffices.

Key quotes

“[E]ven if defendant bore the burden of proving the duties in the EJF List are essential functions of the administrative positions plaintiff seeks, the trial court’s findings are supported by substantial evidence … .” (Lui, supra, 211 Cal.App.4th at pp. 972–973.)

“Where other considerations support a finding that a function is essential, the function ‘need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential.’” (Id. at p. 979.)

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Practice pointer

Open questions

Who bears the burden of proof on essential functions at trial? The court found it “less clear whether [the plaintiff’s] burden included the burden of proving what the essential functions of the position are,” distinguished the federal “burden of production” cases, and expressly declined to decide the point (Lui, supra, 211 Cal.App.4th at pp. 972–973). The allocation remains unsettled in California.

Do the (f)(1)(A) and (f)(1)(C) rationales apply to administrative posts? The court resolved the case under (f)(1)(B) alone and declined to decide whether the strenuous duties are essential because the positions exist to perform them (subd. (f)(1)(A)) or because they require specialized expertise (subd. (f)(1)(C)) (Lui, supra, 211 Cal.App.4th at pp. 973–974).

Health-and-safety and undue hardship. Having affirmed on the qualified-individual ground, the court did not reach whether Lui could perform the duties without endangering health or safety, or whether accommodating him would cause undue hardship (Lui, supra, 211 Cal.App.4th at p. 985).

The interactive-process claim. Part III, addressing the good-faith interactive process, was not certified for publication and is not citable (Cal. Rules of Court, rule 8.1115); this analysis rests solely on the published portions and the published disposition affirming the judgment (Lui, supra, 211 Cal.App.4th at pp. 962, 985).