261 F.3d 877 (9th Cir. 2001), 99-15253, Cripe v. City of San Jose

Docket Nº:99-15253,, No. 00-15625
Citation:261 F.3d 877
Party Name:RODGER M. CRIPE; BRAD J. MARTIN; JAMES P. O'KEEFE; THOMAS F. PALMER; VINCE FEARHEILEY; BRIAN J. ARVIN, PLAINTIFFS-APPELLANTS, v. CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES. BRIAN J. ARVIN; MERCEDES HELEN PHILLIPS, PLAINTIFFS-APPELLANTS, v. CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES
Case Date:August 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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261 F.3d 877 (9th Cir. 2001)

RODGER M. CRIPE; BRAD J. MARTIN; JAMES P. O'KEEFE; THOMAS F. PALMER; VINCE FEARHEILEY; BRIAN J. ARVIN, PLAINTIFFS-APPELLANTS,

v.

CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES. BRIAN J. ARVIN; MERCEDES HELEN PHILLIPS, PLAINTIFFS-APPELLANTS,

v.

CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES.

No. 99-15253,, No. 00-15625

United States Court of Appeals, Ninth Circuit

August 17, 2001

Argued and Submitted April 10, 2001

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Counsel Frank A. Jelinch, Cupertino, California, for plaintiffs-appellants

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Roger M. Cripe, James P. O'Keefe, Thomas F. Palmer, and Vince Fearheiley.

Daniel Jensen, Milpitas, California, for plaintiffs-appellants Brian J. Arvin and Mercedes Phillips.

Clifford S. Greenberg, Senior Deputy City Attorney, San Jose, California, for defendant-appellee City of San Jose.

Appeal from the United States District Court for the Northern District of California William A. Ingram, District Judge D.C. No. CV-96-20060-WAI/PVT; D.C. No. CV-96-20494-WAI

Before: Stephen Reinhardt, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

Reinhardt, Circuit Judge

The plaintiffs in this consolidated action, San Jose police officers with neck and back injuries that prevent them from serving as patrol officers, contend that the City of San Jose's policy that categorically restricts the jobs that officers with disabilities can perform to a small number of undesirable positions violates the Americans with Disabilities Act (ADA). The City, reciting the importance of the work performed by police officers, disagrees. It contends that public safety would be compromised if officers with physical limitations that prevent them from forcibly arresting suspects were permitted to perform more than the prescribed handful of jobs on its police force. Given the standards of review that apply to this appeal, we must agree with the plaintiffs that the City's policy relegating them to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's "clear and comprehensive national mandate" to "eliminat[e] . . . discrimination against individuals with disabilities." 42 U.S.C. §§ 12101(b)(1).

The ADA does not contemplate that the disabled must be integrated only into workplaces in which the work to be performed is unimportant -it requires every type of employer find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. When enacting the ADA, Congress concluded that such is a small price to pay for the benefits of living in a society in which the disabled may realize "equality of opportunity, full participation, independent living, and economic self-sufficiency." Id. at §§ 12101(a)(8). The City of San Jose's police department must participate in this process, as long as it can do so in a manner that will not compromise public safety. The ultimate question in this case is whether its current policies and practices conform with the ADA's mandate.

I. BACKGROUND1

The San Jose Police Department employs approximately one thousand police officers and an additional three hundred sworn officials holding higher ranks, including Sergeant, Lieutenant, Captain, and Chief. Slightly over a majority of police officers work in beat-patrol assignments, while almost half work in other "specialized assignments." Because the specialized assignments are highly desirable, the Department and the officers' union, the San Jose Peace Officers' Association ("police union"), have negotiated elaborate procedures, known as the "Officer Transfer

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Policy," for awarding these preferred jobs.2

Under the Officer Transfer Policy, officers may hold specialized assignments for only a limited period, generally three years, after which they must return to patrol duties. Furthermore, in the year immediately prior to receiving a specialized assignment, the officer must have worked as a beat-patrol officer. In other words, specialized assignments are available only to those officers who have served as beat-patrol officers for the preceding year, and officers receiving such assignments must generally return to beat-patrol duties after three years.

The plaintiffs in this action are six San Jose police officers who have suffered neck, back, and other injuries while on the force.3 These injuries prevent them from serving as beat-patrol officers, but are not so debilitating as to prevent them from performing any police-officer positions on its force. The plaintiffs contend, however, that the City has improperly limited the type of non-patrol assignments that they are permitted to receive.

For the last quarter century, the City has struggled to develop an acceptable plan for reassigning patrol officers who become disabled. The record discloses that the Department's bureau chiefs had concerns about any policy that permitted too many disabled officers to be assigned to their command. The current policy, called the "Modified Duty Policy," is the result of a negotiated agreement between the City and the police union. Under that policy, officers "not fit for regular assignment" are assigned to a "Modified Duty Pool." The City and the police union negotiated a list of positions, known as "modified-duty assignments," that can be performed by officers in the Modified Duty Pool. Modified-duty assignments are allocated among disabled officers primarily on the basis of seniority. All of the positions are non-patrol positions, but unlike the specialized assignments (the non-patrol positions filled by the non-disabled officers), the modified-duty assignments are considered to be highly undesirable. After the modified-duty-assignment policy was initially adopted, the Department management sought, in subsequent contract negotiations, at the insistence of the deputy chiefs and other command staff, to reduce the number of modified-duty positions. Ultimately, under the contract in effect

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when the present litigation commenced, a total of thirty specified modified-duty positions were set aside for disabled officers.

The plaintiffs allege that the modified-duty positions are jobs in which disabled officers are given no real work and in which they are forced to labor under degrading conditions. Officer Arvin explained in a letter to a Department official that in his modified-duty position, he and other disabled officers were forced to work in office space that also functioned as a supply room, and that able-bodied officers constantly interfered with the efforts of the disabled officers to do their jobs by pushing them out of the way while getting supplies. The able-bodied aggressors would refer to those officers on modified-duty status as "lame," "lazy,""faker," "sniveler," "whiner," and "pussy." Furthermore, the officers on modified-duty status were forced to work disadvantageous shifts, and given the least desirable days off.

The Modified Duty Policy does not permit the City to make any individual assessment as to whether an officer, with or without an accommodation, can perform the essential functions of any job other than the contractually set-aside "modified-duty" positions. Thus, no disabled officer is eligible for any other job assignment within the Department.

Further, under the Officer Transfer Policy, officers who are not serving in patrol positions are not eligible to bid for "specialized assignments." Because the plaintiffs cannot perform patrol duties, the transfer policy categorically precludes them from receiving any of the positions they seek to obtain by means of the present action.

The plaintiffs also allege that the City's policies and practices prevent them from being promoted to sergeant positions. They note that the City requires all new sergeants to spend eighteen months in the Bureau of Field Operations, the Bureau responsible for beat patrols and which is composed primarily of beat-patrol officers. The Chief of Police, who must approve all promotions, has a practice of requiring all newly promoted sergeants to work in the "district assignments" unit of the Bureau, which is the unit responsible for patrol, for the first twelve of these eighteen months. Because the plaintiffs' disabilities prevent them from serving as patrol officers, they cannot fulfill this requirement either.

The plaintiffs cite to the deposition of a former Chief of Police who testified that if a disabled officer could not perform this twelve-month patrol assignment, then the officer could not be promoted. None of the plaintiffs, of course, has the ability to serve in a patrol capacity. Finally, Officer Arvin explains in his declaration that he was told by the"Assistant Chief [that he] couldn't promote to Sergeant, because [he] couldn't work the streets."

Dissatisfied with the inadequacies of their modified-duty assignments and the lack of opportunity for promotion, two separate sets of plaintiffs filed actions against the City and the police union.4 In the first, four plaintiffs, Officers Cripe, O'Keefe, Palmer and Fearheiley ("Cripe plaintiffs") seek monetary and declaratory relief pursuant to the ADA. The Cripe plaintiffs allege that they are all disabled and were placed into modified-duty status because of their disabilities. They claim that because of this status, they are denied

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employment and promotional opportunities in violation of the ADA.

In the second action, two plaintiffs, Brian Arvin and Mercedes Phillips ("Arvin plaintiffs") brought an action seeking monetary damages, and declaratory and injunctive relief under the ADA and under the California Fair...

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