In re Accusation of Department of Fair Employment and Housing , 020211 CAFEHC, E-200708-c-0925-00-pe

Docket Nº:E-200708-c-0925-00-pe, C 08-09-072
Opinion Judge:Ann M. Noel, Administrative Law Judge.
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. CITY OF MERCED (FIRE DEPARTMENT), a public agency, Respondent.
Case Date:February 02, 2011
Court:Fair Employment and Housing Commission of California
 
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In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

v.

CITY OF MERCED (FIRE DEPARTMENT), a public agency, Respondent.

RYAN F. STAIGER, Complainant.

Nos. E-200708-c-0925-00-pe, C 08-09-072

Fair Employment and Housing Commission of California

February 2, 2011

DECISION

Ann M. Noel, Administrative Law Judge.

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

The Commission corrects the following in the proposed decision. On page 26, paragraph three, the final sentence of that paragraph should read: " Ryan F. Staiger has 10 days to accept or reject the offer." On page 26, paragraph four, the first sentence should read: " Respondent shall pay to Ryan F. Staiger post-hearing front pay, in compensation for pay lost during the period from December 9, 2009, to the date on which Ryan F. Staiger is actually hired or declines an offer of hire pursuant to section three of this order, less any wages accrued, together with annually compounded interest on that amount at seven percent per year."

Any party adversely affected by this decision may seek judicial review of the decision under Government Code section 11523, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437. Any petition for judicial review and related papers shall be served on the Department, the Commission, respondent, and complainant.

Fair Employment and Housing Commission

George Woolverton

Linda NG

Patricia Perez

Stuart Leviton

Kristina Raspe

PROPOSED DECISION

Administrative Law Judge Ann M. Noel heard this matter on behalf of the Fair Employment and Housing Commission on December 8-10, 2009, and March 9, 2010 in Merced, California. Nelson Chan, then Senior Staff Counsel, represented the Department of Fair Employment and Housing. Frances E. Rogers, Esq., of Liebert Cassidy Whitmore, L.C., represented respondent City of Merced Fire Department. Complainant Ryan F. Staiger and Deneen Proctor, Director of Support Services for the City of Merced, were present throughout the hearing.

Both parties timely filed closing briefs on April 26, 2010. On May 10, 2010, respondent City of Merced Fire Department filed a reply brief. The Department of Fair Employment and Housing waived filing a reply brief.

After consideration of the entire record, the administrative law judge makes the following findings of fact, determination of issues, and order.

FINDINGS OF FACT

1. On April 1, 2008, complainant Ryan F. Staiger (Staiger or complainant) filed a written, verified complaint with the Department of Fair Employment and Housing (DFEH) against City of Merced Fire Department. The complaint alleged that City of Merced Fire Department had refused to hire Staiger because of an actual or perceived disability, " residuals from a prior right arm fracture." The complaint alleged that this conduct violated the Fair Employment and Housing Act (FEHA or Act) (Gov. Code, § 12900 et seq.).

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On April 1, 2009, Phyllis Cheng, in her official capacity as the Director of the DFEH, issued an accusation against respondent City of Merced Fire Department, a public agency (respondent). The accusation alleged that respondent refused to hire Staiger as a firefighter because of his disability/perceived disability, residuals from a prior right arm fracture; failed to make reasonable accommodation based on complainant's known disability; failed to engage in a timely, good faith interactive process to determine an effective reasonable accommodation; and failed to take all reasonable steps to prevent discrimination from occurring in the workplace. The DFEH asserts that this conduct violated, respectively, Government Code section 12490, subdivisions (a), (m), (n), and (k).

3. Respondent is part of a California municipality, the City of Merced, and is an " employer" within the meaning of Government Code sections 12926, subdivision (d), and 12940, subdivisions (a), (m), (n), and (k). At all relevant times, respondent had the authority to hire and to make and to withdraw offers of employment for respondent's firefighter candidates.

4. Staiger was born in 1978. In 1996, while Staiger was still a teenager, he fractured the bones of his right arm, middle knuckle, radius, wrist, and humerus in an accident. To fuse the bone in his right arm, Staiger's doctors surgically inserted medical screws into his forearm. These screws were later removed at a date unspecified in the record.

5. At all relevant times, Staiger had a slight rotational deficiency in his right wrist and elbow as a residual effect of his 1996 right arm injury. When Staiger's right arm was extended in front of him in the " palm up" position, he could not lay his right hand completely flat on a horizontal surface, lacking 10 degrees to " complete flatness," defined as where the back of his hand from the back of his thumb to his little finger would fully touch the horizontal surface. At hearing, Staiger demonstrated that he could extend his right arm and retract it without difficulty and could lay his arm and hand completely flat if he squared his shoulders by slightly rotating his shoulder outward. Because of his range of motion deficit, Staiger also could not completely extend his right arm. Staiger had no tenderness or swelling in his right arm and maintained a normal grip strength and normal ability to flex and extend his right elbow.

6. Staiger was a lifelong resident of Merced. Since he was a child, he had wanted to be a firefighter for respondent, in the community he considered his home and where his father worked as a firefighter. Staiger struggled academically because of learning disabilities. He initially hesitated to pursue a career as a firefighter, knowing that firefighting required a great deal of schooling in addition to physical capacity. Staiger overcame his initial learning difficulties, and, between 2002 and 2005, took a number of firefighting courses to earn various firefighting certificates. The majority of the courses and certificates were applicable and valid for all firefighting jobs at the California state, county, and city levels. These included certificates in: handling hazardous materials; rescuing persons in confined spaces; driving various firefighting vehicles; extricating people from automobiles; and fighting structure and " urban interface" fires, the later involving structures near wild lands. Attaining these certificates was not a prerequisite to work for a firefighting agency. Staiger pursued these certificates to better his skills, safety, and knowledge of firefighting, and in an effort to stand out in the field of candidates for a firefighter position with respondent.

CAL FIRE Firefighter

7. From approximately July 10, 2006, and through the date of hearing, complainant worked as a Fire Fighter 1 for the State of California's Department of Forestry & Fire Protection (" CAL FIRE" ), a seasonal firefighter stationed in Coulterville, California. The firefighting season for CAL FIRE was generally the hot, dry months of the year, from late spring through early fall. Staiger passed an initial physical examination and thereafter a 67-hour firefighting academy course. Throughout his CAL FIRE employment, complainant performed the essential functions of the job without needing or requesting any type of accommodation.

8. As a CAL FIRE firefighter, Staiger performed heavy physical work involved in firefighting as a member of a fire crew; fought wildfires and structure fires using equipment and tools; and when there were no fires, performed other related duties such as clearing trails, cutting brush, assisting in building repair, maintaining grounds equipment; and maintaining daily physical fitness for the rigorous duties of fighting wildfires. CAL FIRE firefighters were trained in both wildfire and structure fire gear and firefighting techniques. They also were trained in two main positions for low angle rescue, designed to rescue victims from steep terrain, requiring strong upper body strength.

9. The State of California categorized CAL FIRE firefighting duties as " " arduous physical work" requiring " physical performance calling for above-average ability, endurance, and superior condition, including occasional demand for extraordinary strenuous activities in emergencies, under adverse environmental conditions and over extended periods of time." The job required " " running, walking, difficult climbing, jumping, twisting, bending and lifting over 25 pounds," the pace of work set by the emergency situation. Firefighters were required to have good vision, hearing and the necessary strength and agility required for extensive bending, stopping, and squatting. To fight fires in the Sierra Nevada wilderness, CAL FIRE firefighters charged uphill often at a significant angle fighting loose rocks, soil and mud in summer temperatures up to 114 degrees. Because of the remote locations of many of the fires, CAL FIRE firefighters often worked several days in a row with little or no rest.

10. Captain Gordon Dulcich, CAL FIRE captain and station manager at Coulterville, hired Staiger and had worked with Staiger throughout his employment as a firefighter there. Captain Dulcich considered Staiger " one of the best firefighters" in his crew; the station's most mature, responsible firefighter. At no time did Captain Dulcich observe that Staiger had any difficulties in performing all of his regular tasks and duties as a CAL FIRE firefighter. The City of Merced had a work sharing...

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