Police officer disabled from performing strenuous street duties not eligible for administrative job accommodation due to that job's essential strenuous duties.

December 24, 2012
By Justice Steven Vartabedian (Ret.) on December 24, 2012 6:00 AM |

Police officer.jpgIn Lui v. City and County of San Francisco (filed December 11, 2012) 2012 DJDAR 16496, plaintiff, a sworn police officer with defendant since 1981, suffered a heart attack and took 11 months of disability leave. He then returned to work to take a 1-year temporary modified duty (TMD) position in the police records room. At that point, he was advised that his permanent medical limitations stated by his physician could not be accommodated in the permanent sworn-officer administrative position he sought because strenuous duties beyond his capability were essential: the department may need to deploy officers in those positions in the event of emergencies. Plaintiff was offered unsworn positions, but plaintiff demanded a sworn officer position rejecting the unsworn ones. After retiring, he sued defendant employer on claims including disability discrimination and failure to accommodate under the Fair Employment and Housing Act (FEHA).

At court trial, the judge ruled in favor of defendant finding that under FEHA the essential functions of the sworn adminstrative officer positions sought included making forcible arrests and chasing fleeing suspects; that defendant had a legitimate need to deploy such officers in the event of emergencies. Because plaintiff's physician required that he "avoid physically strenuous work and minimize physical contact" indefinitely in his return to full duty, defendant reasonably could not accommodate plaintiff in a sworn position.

The Court of Appeal, First Appellate District, Division Five, affirmed. In order for plaintiff to prevail on his claim he bore the burden of proving he was able to perform the essential duties of the positions he sought, with or without reasonable accommodation. While plaintiff pointed to the lack of any studies supporting defendant's claim that it needed these sworn administrative officers to be ready for emergency street work, the reviewing court felt that such proof was not necessary; it declined to "second-guess" the police department's judgment in this regard. And defendant did present some evidence that the administrative officers periodically have been expected to perform street officer duties in a pinch.

The appellate court additionally distinguished this case from Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757. (See blog dated May 5, 2011.) There, the LAPD maintained light-duty positions for disabled officers, the essential function of which were not the same as those of officers on the streets. Here, the police department assigns disabled officers to admin positions on a temporary basis only; there was no obligation to make the positions permanent.

In large part, this case indicates how an employer's policy concerning the type of work it expects of employees placed in particular positions, even if that is in a backup role, can largely control the outcome when the question of "essential duties" is litigated.