Atkins v. City of L. A., B257890

• Decision Date: 14 February 2017
• Docket Number: B257890
• Citation: 214 Cal.Rptr.3d 113,8 Cal.App.5th 696
• Court: California Court of Appeals Court of Appeals
• Parties: Ryan ATKINS et al., Plaintiffs and Respondents v. CITY OF LOS ANGELES, Defendant and Appellant.

8 Cal.App.5th 696

214 Cal.Rptr.3d 113

Ryan ATKINS et al., Plaintiffs and Respondents

v.CITY OF LOS ANGELES, Defendant and Appellant.

B257890

Court of Appeal, Second District, Division 7, California.

Filed February 14, 2017

As Modified on Denial of Rehearing March 13, 2017

Michael N. Feuer, City Attorney, James P. Clark, Chief Deputy City Attorney, Thomas Peters, Chief Assistant City Attorney, Amy Jo Field, Assistant City Attorney, Blithe S. Bock and Paul Winnemore, Deputy City Attorneys, for Defendant and Appellant.

Jones & Mayer, Martin J. Mayer and Denise Rocawich, Fullerton, for California Police Chiefs' Association, California State Sheriffs' Association and California Peace Officers' Association as Amici Curiae on behalf of Defendant and Appellant.

Greines, Martin, Stein & Richland, Timothy T. Coates and Alison M. Turner, Los Angeles, for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and Appellant.

McNicholas & McNicholas, Matthew S. McNicholas, Douglas D. Winter, Los Angeles; Fullerton & Hanna, Lawrence J. Hanna, Van Nuys; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Respondents.

SEGAL, J.

INTRODUCTION

A jury found that the City of Los Angeles violated the rights of five recruit officers of the Los Angeles Police Department under the Fair Employment and Housing Act (FEHA) when the Department terminated or constructively discharged them from the Police Academy. Each of the recruits suffered temporary injuries while training at the Academy. At the time they were injured, the Department had been assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled. The Department ended this practice while the plaintiffs were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy. None of the recruits was able to obtain the necessary clearance, and the Department terminated or constructively discharged all of them. The five recruit officers brought this action.

The jury found that the City unlawfully discriminated against the plaintiffs based on their physical disabilities, failed to provide them reasonable accommodations, and failed to engage in the interactive process required by FEHA. The City challenges the jury's verdict on a number of grounds, including that the plaintiffs were not "qualified individuals" under FEHA because they could not perform the essential duties of a police recruit with or without a reasonable accommodation, and that the City was not required to accommodate the plaintiffs by making their temporary light-duty positions permanent or by transferring them to another job with the City. With respect to the plaintiffs' claim for failure to engage in the interactive process, the City argues that because there were no open positions available for the plaintiffs, the City did not have to continue the required interactive process.

We agree that the plaintiffs were not "qualified individuals" under FEHA for purposes of their discrimination claim but conclude that they satisfied this requirement for their failure to accommodate claim. We further conclude that requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law in light of the City's past policy and practice of doing so. Because we affirm the City's liability on this basis, we do not reach the City's challenge to the verdict on the plaintiffs' claim for failure to engage in the interactive process.

The City also challenges the jury's award of future economic damages as speculative and excessive. Despite the fact that the plaintiffs had completed only hours or weeks of their Academy training, the jury awarded each of them future economic losses through the time of their hypothetical retirements from the Department as veteran police officers. We agree with the City that such damages are unreasonably speculative. We therefore vacate that portion of the damages award, as well as, for now, the trial court's award of attorneys' fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Plaintiffs and Their Injuries

The City hired Ryan Atkins, Douglas Boss, Justin Desmond, Anthony Lee, and Eriberto Orea as recruit police officers between mid-2008 and early 2009. Each of them entered the Police Academy shortly after he was hired. Upon successful completion of the Academy's six-month training course, the recruits would have started a 12-month field probationary period as police officers.

Atkins trained in the Academy for three months before suffering a knee injury

that eventually required surgery. Boss fractured his ankle two weeks into training. Desmond suffered an injury while running on the third day of Academy training, received medical attention, and eventually joined another recruit class before injuring his groin and back five or six weeks later. Lee started Academy training in July 2008, resigned a month later for personal reasons, then joined another recruit class in December 2008. A week later he injured his knee and underwent knee surgery in mid-2009. Orea injured his knee on his third day at the Academy.

All of the plaintiffs saw City doctors who restricted their activities in various ways. The City provided physical therapy for some of the plaintiffs and placed all of them in the "Recycle" program, which gave the plaintiffs desk jobs while they recuperated.

B. The Recycle Program and Its Demise

According to the Recruit Officer's Manuals dated September 2007 and May 2009, which the court received into evidence, recruit officers had to pass a physical fitness examination that included a mile-and-a-half run and an obstacle course. Recruits who could not pass this examination were "recommended for termination from the Department." When the plaintiffs joined the Academy, they signed a Physical Condition Disclosure Form stating that they were "physically qualified and have no pre-existing physical limitations that would prohibit [them] from fully participating in all aspects of the Academy recruit physical conditioning and self-defense training program."

If a recruit became injured while at the Academy, the City placed him or her in the Recycle program, which provided recruits with light-duty administrative jobs until their injuries healed and they could return (or recycle back) to the Academy. While in the Recycle program, recruits received full compensation and benefits.

Before the plaintiffs suffered their injuries, some recruits had remained in the Recycle program until their injuries healed or they became permanently disabled. This practice conflicted with Penal Code section 832.4 and regulations issued by the California Commission on Peace Officer Standards and Training (POST), the agency that oversees police officer training statewide. Those provisions require recruits to complete their training and 12-month probationary period within two years. (See Pen. Code § 832.4 ; Cal. Code Regs., tit. 11, § 1012.) The Department referred to this requirement as the "two-year rule."

In an apparent attempt to ensure compliance with the two-year rule, the Department adopted the Revised Recruit Officer Recycle Policy in July 2008. That policy stated: "Once in the Recycle Program, the recruit officer will have a total of 90-days to return to full-duty status and/or re-enter an academy class." If the recruit remained injured at the end of this 90-day period, however, the Department would seek a 90-day extension from POST up to a maximum of six additional months for the recruit to complete his or her Academy training. "In summary," the Policy stated, "any recruit officer with a work restriction(s) or any other condition that precludes them from fully participating in all aspects of the Basic Course, which has or will extend beyond six calendar months, is no longer eligible to remain in the POST Basic Course ." The Department required new recruits, including the plaintiffs, to sign a document acknowledging they had received the Revised Recruit Officer Recycle Policy.

The Department also attempted to avoid violating the two-year rule by changing the date on which recruit officers were sworn into the Department. According to POST and Department practice, the two-year rule did not begin to run until a recruit swore an oath to uphold the Constitution and to protect the residents of Los Angeles.¹ Thus, rather than swearing in new recruits on their first day at the Academy, the Department sought to delay the swearing-in date until graduation from the Academy. This change apparently required the agreement of the Los Angeles Police Protective League, the union that represents City police officers. Following a lengthy meet-and-confer process with the Police Protective League, the Department and the Police Protective League signed a Memorandum of Understanding dated November 5, 2008 stating in part: "The Department shall not be required to administer the loyalty oath required by state law and municipal ordinance to recruit officers on the first day of employment. The actual timing and procedure for the swearing in of recruit officers shall be at the discretion of the Department."

The record does not reflect whether the plaintiffs were sworn in before their separations from the Department. It is undisputed, however, that all of the plaintiffs and other injured recruits remained in the Recycle program longer than six months, notwithstanding the Revised Recruit Officer Recycle Policy.

Also in November 2008, Los Angeles Mayor Antonio Villaraigosa sent all City departments a memorandum asking them to reduce their operating budgets, including by reducing the number of City employees, in light of the "extraordinary financial challenges" then facing the...