Quinn v. City of Los Angeles

• Decision Date: 30 October 2000
• Docket Number: No. B128454.,B128454.
• Citation: 100 Cal.Rptr.2d 914,84 Cal.App.4th 472
• Parties: Eugene QUINN, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

100 Cal.Rptr.2d 914

84 Cal.App.4th 472

Eugene QUINN, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

No. B128454.

Court of Appeal, Second District. Division 4.

October 30, 2000.

Rehearing Denied November 22, 2000.

Review Denied January 10, 2001.^*

James K. Hahn, City Attorney, Cecil W. Marr, Senior Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendant and Appellant.

Law Offices of Paul A. Greenberg, Paul A. Greenberg, Los Angeles, Iris Weinmann, Santa Monica, and Joseph Posner, Encino, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

Plaintiff Eugene Quinn applied to be hired as a Los Angeles City police officer. He failed the medical exam because of a significant hearing impairment. However, due to a clerical error, he was notified to report for further tests. He passed those tests, was admitted to and graduated from the Police Academy, and was assigned to patrol duty. While a probationary patrolman, his hearing problem manifested itself in several ways, resulting in his eventual assignment to desk duty. After another hearing exam revealed his hearing impairment, the Los Angeles Police Department (LAPD) terminated him while he was still a probationary employee.

Plaintiff sued the City of Los Angeles (City) and went to trial on the theory his discharge constituted illegal disability discrimination in violation of the California Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) City unsuccessfully moved first for a nonsuit and later for a directed verdict on the theory plaintiff had failed to establish a key element of his prima facie case: his qualification to be hired as a police officer. City relied upon the uncontested facts that plaintiff had failed the initial physical (hearing) exam and that passing that exam was a condition precedent to acceptance as a recruit into the LAPD. In other words, City claimed plaintiff could not have been wrongfully discharged because he was not even qualified to be hired for the position. The court denied both of those motions.

As framed by the jury instructions and special verdict form, the issues for the jury were whether plaintiff had been terminated because of a disability and, if so, whether City had discharged its burden of showing no reasonable accommodations were available or that retaining plaintiff as a police officer created a danger.¹ The jury found in favor of plaintiff and awarded him $200,000. Thereafter, the court awarded plaintiff costs and attorney fees in excess of $300,000. This appeal by City follows.²

We conclude the trial court erred in denying City's motion for a directed verdict. Simply stated, plaintiff failed to produce evidence on a critical element of his claim: his qualification to be hired as a police officer. "That seems to us to be the common sense of the matter; and common sense often makes good law." (Peak v. United States (1957) 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631.) We therefore reverse with directions to enter judgment in favor of City.

FACTUAL AND PROCEDURAL BACKGROUND

Our discussion is limited to giving context to the basis of our reversal: plaintiffs inability to qualify to be hired as police officer. Consequently, we omit discussion of the bulk of the evidence offered on other issues such as what City could have done to accommodate plaintiff. As we shall explain, that evidence is irrelevant: City had no obligation to accommodate him because he did not meet the minimal qualifications (sound hearing) to be hired for the position.

At the age of 44, plaintiff quit his job in the money brokerage business and applied to the LAPD. At the time he applied, he knew he had a hearing impairment in his left ear. At trial, he testified: "I cannot hear out of it [the left ear]" and conceded this impairment substantially affected a major life activity.

When he submitted his written application to LAPD, he disclosed the hearing impairment. At his physical examination, a hearing test indicated "moderate to severe hearing loss in the left ear." Thereafter, a sound localization test was administered which determines an individual's ability to determine the direction from which a sound is coming. The ability to localize sound is particularly significant to police officers in split second, life-threatening situations when an officer cannot clearly see. Plaintiff failed the sound localization test. Dr. Goldberg, an assistant medical director for City, testified that "based on this test, I did not feel comfortable making the assessment that his ability to localize sounds in a split second or in a life threatening situation would be normal. I had to conclude that his localization would be subject to errors and that failure to perform as such represented an imminent and serious hazard, both to himself and others, other officers and members of the public, if he were to be employed as a police officer. Therefore, I unfortunately had to fail him on his medical exam."

In April 1995, City sent plaintiff a letter notifying him that he would be removed from the candidates' list because he had failed the sound localization test. Plaintiff was disappointed but set about to find another career.

However, soon thereafter, plaintiff received another letter, directing him to appear at the Police Academy for a physical abilities test. It is uncontested that this letter was sent in error. The genesis of the error was the fact a city clerk mistakenly input into the computer the entry that plaintiff had passed the medical exam. Recognizing the mistake, plaintiff telephoned to ascertain his status, explaining he had failed the sound localization test. The person he spoke with utilized his social security number to access the erroneous information entered in the computer and consequently (incorrectly) informed him he had passed his medical exam. Plaintiff testified: "So I figured, `Well, maybe, you know, you can fail a portion of the test but overall pass' or maybe they had another position in mind for me. I wasn't sure what was going on, but I was happy to receive this news."

Plaintiff passed the physical abilities and psychological tests, cleared the background check, and was accepted into the Police Academy. He graduated in the top quarter of his class in March 1996 and was assigned as a patrol officer. His first two performance evaluations were unsatisfactory. Subsequent evaluations were "mixed," as plaintiffs hearing impairment manifested itself in terms of inability to hear the radio, the Mobile Display Terminal, or his partner's instructions. He was given a portable radio with a shoulder microphone which somewhat alleviated the problem.

In May 1996, plaintiff was removed from the field and assigned to a desk job because of his demonstrated difficulty in hearing. A hearing test was administered which showed a "very significant" hearing loss. Dr. Jothan Staley testified "[t]he performance issues that were raised were those that could definitely cause danger to [plaintiff], could endanger co-workers should he not hear some critical piece of information, and definitely could endanger the public."

In September 1996, plaintiff, while still on probationary status, was terminated. A subsequent letter from the LAPD explained: "You were medically removed from the Department for failing to meet the requirements established by the California Commission on Police Officer Standards and Training (POST).... [¶] `[T]he Department must rely upon the standards established by POST regarding the selection and training of peace officers."

At trial, to show that he was otherwise qualified for the position, plaintiff offered the testimony of Los Angeles Police Officer Robert Grant, a field training officer who had worked with him. Officer Grant testified plaintiff "performed very well" and was "making satisfactory progress" as a probationer. In Officer Grant's opinion, plaintiffs hearing impairment did not "affect[ ] his job at all," plaintiff "did not compromise the safety of myself or any other person," and were plaintiff still on the force, "he would be doing very well today and he'd be serving the citizens of Los Angeles extremely well." On cross-examination, Officer Grant conceded he and plaintiff had only worked together in a patrol car on two occasions but nonetheless claimed he had more than 20 opportunities to observe plaintiff work as a police officer.

At the close of the liability phase of the trial, City renewed its motion for a nonsuit and moved for a directed verdict.³ One basis of its motion was that plaintiff was not physically qualified to be hired as a police officer because he had failed the initial hearing test. The court denied the motion. It explained: "And the problem I have is Officer Grant has testified as a trained officer and he has created a triable issue of fact and I have it before me and the ... jury is going to have to decide. And it goes to whether or not he [plaintiff] is occupationally qualified and you [City] have presented evidence from the doctors [and officers who worked with or supervised plaintiff] and you present all that evidence to the effect he was not occupationally qualified.... [¶] ... [¶] The point is, I have a triable issue of fact.... [¶] ... I am not giving in [the] case by the way of summary judgment."

At the close of trial, the court submitted BAJI No. 12.12 which defines the elements of disability discrimination. The instruction provides:

"The essential elements of a claim for unlawful disability discrimination are:

"1. Plaintiff is an individual with a physical disability;

"2. Defendant was an employer;

"3. Plaintiff was an employee of the defendant;

"4. Defendant denied in whole or in part an employment benefit to the plaintiff;

"5. The plaintiffs disability was a motivating factor of this denial.

"A motivating factor is something that moves the will and induces action even though other matters may have...