Bates v. Bankers Life and Casualty, 2/24/17, 9th Cir.
After the district court struck their class allegations, Plaintiffs appealed without first getting permission from the district court or from the Ninth Circuit. Held: Appeal dismissed for lack of jurisdiction.
Bankers Life sells long term health insurance policies to the elderly. Unhappy with how their policies were being administered, Plaintiffs sued Bankers Life asserting individual claims (e.g., breach of contract) as well as various class action claims that policyholders’ claims were being mishandled and benefits were therefore being denied. On Defendant’s motion, the class allegations were stricken. Striking class allegations is the functional equivalent to denying a motion for class certification. Plaintiffs did not ask the district court to certify its order striking class allegations for interlocutory appellate review under 12 U.S.C. 1292(b); nor did plaintiff’s petition for the Ninth Cir.’s permission to appeal under FRCP 23(f). Plaintiff instead relied on FRCP 54(b), the rule concerning judgments.
Pursuant to section 54(b), plaintiff asked the district court to enter final judgment on its decision to strike class allegations, which the court did. That determination would seem to satisfy the prerequisite for appellate jurisdiction – Section 1291 grants appellate jurisdiction over final decisions. The problem is that a judgment is final when it ends the litigation between the parties (plaintiffs still had their individual breach of contract claims), and a district court does not have the discretion to convert a non-final judgment into a final judgment. Finally, while defendant had not raised the issue of lack of appellate jurisdiction with the district court, that didn’t change the result: A defect in jurisdiction can be raised for the first time on appeal.
In Sexual Harassment Case, Pervasive Hugging Can Create Triable Issue of Fact of Whether Conduct is Abusive; Summary Judgment Reversed
Victoria Zetwick v. County Of Yolo, 2/23/17, 9th Cir.
In this sexual harassment case, Sheriff greeted plaintiff, a female officer, with over 100 hugs over a ten year period; once he gave her a congratulatory kiss that landed partially on her lips; he hugged other women officers but not the male officers; and at least once he acknowledged that there had been complaints about his conduct but then hugged plaintiff anyway. Plaintiff sued City and Sheriff under Title VII of the Civil Rights Act and California’s anti-discrimination statute, FEHA. The district court granted City’s and the Sheriff’s motion for summary judgment. Held: Reversed.
As the Ninth Cir. found, the district court can’t resolve genuine disputes on summary judgment; the trial judge’s job is not to weigh the evidence but to determine whether there is a genuine issue of fact for trial. To defeat summary judgment requires evidence “such that a reasonable juror drawing all inferences in favor of the respondent could return a verdict in the respondent’s favor.” In the sexual harassment context that means adducing evidence “that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Here, the court held that the pervasiveness of the behavior and the difference in how female and male officers were treated created a genuine issue of fact.
The court made a few additional observations worth noting:
1. Contrary to the suggestion of the trial court, there is no black letter rule that “that hugging cannot create a hostile or abusive workplace.”
2. The conduct in question has to be severe or pervasive not, as the trial court suggested, severe and pervasive.
3. Even though some workplace hugging is ordinary, a reasonable juror could find from the frequency of the hugs, that the Sheriff’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive.
4. In deciding whether conduct is severe or pervasive, it is critical to consider the “cumulative effect of the conduct at issue.”
Accident Caused During Employee’s Lengthy Commute Deemed Not The Responsibility of the Employer; Summary Judgment Affirmed
Lynn v. Tatitlek Support, 2/22/17, 4DCA/2
Generally, an employer is not vicariously liable for accidents its employee causes during the commute to and from work. There are exceptions, including when the commute itself provides an incidental benefit to the employer; where travel time is being paid for; or when the nature of the work makes the employee an “instrumentality of danger” during his/her commute. Here, a temporary worker struck an oncoming car on his way home, killing himself and one of the occupants in the other car. The employee had been drinking before the accident. He admittedly came from a great distance, but the company had not recruited from his geographic area; he was free to use his personal car or take a company bus to the job site; he was not paid for his travel time; and, while he remained at the job site during the temporary assignment and the work was grueling, there was no evidence that the grueling nature of the work was a contributing factor to the accident, e.g., no evidence was presented that the employee hadn’t gotten enough sleep the night before he left for home. In accident victims’ lawsuit alleging that driver’s employer was vicariously liable for their injuries, the trial court granted employer’s motion for summary judgment. Held: Affirmed.
Defendant Tatitlek (TSSI) provides realistic pre-deployment training at military bases throughout the country. The Marines hire TSSI to provide Afgan speaking role-players for exercises at its base in Twenty Nine Palms. TSSI recruits employees from San Diego, Freemont and Phoenix. At their discretion, role players can be bused from off-site facilities (80% choose this option) or drive directly to the base. Some role players learn about these jobs by word of mouth and come from perhaps 100 to 600 miles away, and meet at off site facilities in Phoenix, San Diego or Freemont.
Role players remain at the base during the exercises and work 8-19 hours each day. The exercises are strenuous and stressful, although employees were required to get at least 5 hours of sleep per night. At the end of the exercises, they checked in at the on-base facility, were then transported to a facility off the base, and from there were free to take TSSI buses or their own personal transportation. No one was paid for travel time to the base, and no one did work during travel time. One role player employee, Formoli, lived in Sacramento and chose to drive his own car to and from the base, rather than riding in a company bus.
After his temporary job ended, Formoli started driving home. Two hours after he left the base, he veered into oncoming traffic and hit another car. He died and people in the other car were either killed or seriously injured. At the time of the accident, his blood alcohol level was .06.
The victims in the other car sued the driver and TSSI.
TSSI moved for summary judgment citing undisputed evidence that before the accident had been discharged as an employee, was not engaged in activity for TSSI, including incidental activity, that he was no longer at work on the jobsite (the base), and was not being compensated for travel time.
In opposition, Plaintiffs argued various exceptions to the going and coming rule, claiming that that TSSI gained an incidental benefit from Formoli’s commute; that Formoli was being paid for travel time, and that the special risk exception to the going and coming rule applied because the work was grueling and role players got little sleep. Later, Plaintiff also argued that because TSSI solicited workers from distant labor markets it should have to pay for the risks inherent in commuting long distances.
As the defendant, it was TSSI’s initial burden to show one of the elements of plaintiff’s cause of action could not be met. Defendant did this by establishing the going and coming rule. The burden shifted to plaintiffs to provide evidence of an exception to that rule.
Vicarious liability for employee conduct in the course and scope of the employment stems from a policy decision to include the costs of accidents into the costs of production that society bears through the price of a product and insurance rates, rather than the innocent third party. Commute time is generally outside the scope of work because employees are not providing a benefit or service to the employer and business. The employment relationship is viewed as suspended during off hours.
If the commute is made part of the work day or the employer derives a benefit from the commute. Examples include when the employee is required to commute in his personal vehicle or engaged to run a special errand for the employer. One court explained that, when an employer chooses to further its business interest by enlarging the geographical pool from which to draw its labor force by paying its employees for their commute, and this business benefit also creates a concomitant increased risk of accidents by hiring employees with lengthy commutes, the lengthy employee commutes benefit the employer. However, in that case, the employer paid for travel expenses and travel time, and the employee’s job required him to commute to job sites (elevator repair) rather than to and from employer’s office.
Here, there was no incidental benefit to the employer. The employee didn’t have to commute to the jobsite, he wasn’t required to use his car and he wasn’t paid for his commute; TSSI didn’t recruit employees from the geographic area from which Formoli came; Formoli had the option to use a busing service to get to the base; and more generally had the option of when, where and how to commute to the jobsite. The means of travel to work was a matter of “complete indifference” to the employer. In addition, had had completed his temporary assignment, and at the time of the accident he was about 100 miles from the job site. Thus, any benefit to TSSI was too attenuated to require TSSI to bear the risk of an accident. The court also noted that a long commute by itself is not enough to overcome the general rule.
Another exception to the general rule is where the employer compensates the employee for travel time. That didn’t apply here and Plaintiff’s claim to the contrary was based on pure speculation and not evidence.
Finally, the special risk exception did not apply either. The special risk exception applies when an employee endangers others with a risk arising from or related to work. “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. The special risk exception “is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace.” While plaintiff did work a grueling schedule before he left the site, plaintiffs presented no evidence of when the role player last slept before his commute. Therefore, there was no evidence that he veered into oncoming traffic because of anything that happened while he was working at the base. In addition, he had a heightened blood-alcohol level.
The Cost of Changing Discovery Responses Can Be High
Rhule v. WaveFront Technology, Inc., 2/23/17, 2DCA/5
In response to Requests for Admission, Plaintiffs mistakenly admitted that Defendant had not violated certain Labor Code sections, violations that had been alleged in the complaint and, presumably, were critical to Plaintiffs’ case. Plaintiffs realized their mistake and, after Defendant had already taken Plaintiffs’ depositions, asked the trial court to grant leave to amend the mistaken admissions. The trial court granted Plaintiffs’ motion subject to conditions, and subsequently granted Defendant’s motion for over $8,000 in attorney’s fees pursuant to Code of Civ. Proc 2030.300(c). Held: Affirmed.
First, on the legal question posed by the appeal, section 2033.300(c) provides that “The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: [¶] (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. [¶] (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” Given that section 2033.300(c) mentions costs but not attorney’s fees, can the trial court award fees? Yes — Code of Civ. Proc. section 1033.5 treats attorney’s fees as a subset of costs. Moreover, section 2033.300(c) allows the court do what it deems “just,” which suggests that the trial court has wide discretion in this area.
Concerning Plaintiffs’ argument that the trial court abused its discretion in awarding these fees, the party challenging an award of attorney fees bears the burden of providing an adequate record to demonstrate error. Plaintiffs did not provide a reporter’s transcript or an agreed or settled statement, so it couldn’t meet that burden. The lesson: Hire a court reporter for important hearings.
Finally, the costs that trial court awarded were for opposing the motion to amend the admissions, and the anticipated costs (and fees?) related to retaking Plaintiffs’ depositions. $8000 seems steep, but that goes back to Plaintiffs’ failure to provide an adequate record for review.
In Matter of First Impression, 2DCA Hold that California Law Does Not Preclude Consideration Of Controls Required By Public Regulations In Finding An Agency Relationship
Secci v. United Independent Taxi Drivers 2/15/17, 2DCA2/5
Motorcyclist was hit by a cab and sued the cab driver and the cab company (United) for personal injury. United operates under a franchise agreement with the city where the accident occurred. Various government regulations and rules apply to United and United enforces those rules on its drivers. Whether a person is an employee, independent contractor or agent turns largely on the amount of control exercised by the company. The jury found that the driver was not an employee of United but was its agent. Liability was imposed on United on that basis. The trial court granted United’s motion for JNOV, holding that control exercised over the driver by virtue of government regulations shouldn’t count against the cab company for purposes of deciding agency. Held: Reversed.
The jury instruction (CACI No. 3705) on agency provides: “Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. … It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent. The existence of the right of control and supervision establishes the existence of an agency relationship.” This is a fact question for the jury. A trial court can reverse the jury’s verdict on a motion for JNOV under limited circumstances. “A motion for a judgment notwithstanding the verdict may properly be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff’s evidence, the result is a determination that there is no evidence sufficiently substantial to support the verdict.”
United argued that control exercised over drivers by virtue of government regulation shouldn’t count in the agency-control analysis, an argument that the trial court accepted. At least two federal cases support United’s position; but there are no California cases on point.
The appellate court rejected the holding of the federal cases. Unlike federal law, under California agency law, independent contractorship is not necessarily mutually exclusive with a finding of agency. Simply put, an agent may also be an independent contractor. The court therefore rejected federal authorities relied on by United, and found that government regulation could be measured in the agency-control analysis.
The court found support for it conclusion in the “regulated hirer” exception to non-liability in the independent contractor area. While companies are not generally for the conduct of their independent contractors, one exception (among a growing number) concerns the “regulated hirer.” See Millsap v. Federal Express Corp., supra, 227 Cal.App.3d 425, 433–435 (Millsap). In Millsap, the court of appeal discussed the regulated hirer exception to the general rule of non-liability, pointing out that the hirer of an independent contractor may be held liable when “an individual or corporation undertakes to carry on an activity involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority.” So, when regulations exist for public safety, a company subject to those regulation can’t necessarily escape responsibility and liability to the public by simply passing the buck to its independent contractors.
Finally, the court rejected United’s argument that the regulations in question in this case were not for public safety but for quality of life. The court seemed to suggest that salient point was that the regulations occurred under the government’s police power. This last point is an important one because its portents that the rule announced by this court could be applied rather liberally.
In Debt Collection and Fair Debt Collection Practices Case, Summary Judgment Reversed For Debtor’s Failure to Present Facts Showing Debt As Time-Barred
Professional Collection Consultants v. Lauron 2/16/17, 6DCA
On summary judgment, the moving party has to connect the evidentiary dots to win. Here, bad credit card debt was assigned to debt collector PCC. PCC filed suit against debtor in California. Debtor had two credit cards accounts, and at least one was subject to a cardholder agreement with a Delaware choice of law provision. Delaware as a three year statute of limitations for breach of contract; California has a four year statute. Debtor cross-complained under federal and state fair debt collection laws alleging that PCC was attempting to collect a time-barred debt. Assuming both credit cards accounts were subject to Delaware law, the trial court granted debtor’s motion for summary judgment on PCC’s complaint, and then granted summary judgment on her claim that PCC had violated federal and state debt collection laws. PCC appealed. Held: Reversed.
Debtor failed to do three things. With respect to the one of the two credit cards, she failed to present evidence that it was subject to a cardholder agreement with a Delaware choice of law provision. Second, with respect to both credit cards, she failed to show when each cause of action accrued. A cause of action for breach of contract accrues on the failure of the promisor to do the thing contracted for at the time and in the manner contracted. The statute of limitations is a defense. Therefore, debtor had the burden to show when she stopped paying the credit cards according to the terms and conditions of the cardholder agreement. Presumably this could have been done simply by submitting a billing statement, and perhaps she did submit such evidence to the trial court. But in her appellate brief she failed to cite to the record showing that. As the court noted, it is not the appellate court’s responsibility to wade through the record and find the a party’s evidentiary cites for them.
In Matter for First Impression, 4DCA Says CCP 1033.5(c)(4) Allows Trial Court to Award Receivership Costs to the Prevailing Party
Southern Cal. Sunbelt v. Banyan Limited etc. 2/16/17, 4DCA/3
This case has been going on for about 20 years, involves too many parties to count (including a disbarred lawyer), four trials, two writs and seven appeals – Basically a train wreck, and therefore a must read. It was a good call — this case contains an issue of first impression: Whether the trial court has the authority, under receivership law and Code of Civ. Proc. 1033.5, to tag the losing party with the costs of a receiver ($218,000 in this case). Under receivership law, the receivership estate usually must pay for the costs of a receiver. Moreover, section 1033.5 does not list receivership costs as either an allowed or a prohibited cost. In 2007, a prior trial judge essentially ordered that receivership property would be used to pay for the receiver. On the basis of the prior judge’s order, in 2014, the current trial judge said that it was without authority to award receiver’s costs to the prevailing party. It therefore granted the losing party’s motion to tax costs. Held: Reversed.
Receivership Law
As a general rule, receivership costs are paid from the receivership estate; but the court has broad discretion to place receivership costs on on a party who sought the appointment or to “apportion them among the parties, depending upon circumstances.” The exceptions to the general rule are extensive and turn on various factors – e.g., whether there are sufficient assets in the estate, the litigation conduct of the parties, the merits of the asserted claims, the benefits the parties received by having a receiver, and the relative equities involved. Finally, the fact that a prior trial judge allowed and/or approved that costs being paid from the receivership estate did not bar a subsequent shifting of those costs. A receivership is a provisional remedy and orders concerning their appointment, conduct, discharge and accountings are interim orders.
Ca Code of Civ. Proc 1033.5 and the Issue of First Impression
Section 1033.5 was enacted in 1986 and codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action, including an item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Courts have held that costs associated with court-appointed assistants, referees, special masters and even mediators can be recovered under 1033.5(c) and charged against the losing party. 4DCA said that the legal rationale permitting cost awards for referees and mediators should also apply to court-appointed receivers. Receivers are agents of the court not of the parties, and they hold the assets for the court not the parties. Therefore, they can be reasonably necessary to the conduct of the litigation.
Lender’s Seven-Year-Old Equitable Subrogation Claim Not Barred By Three Year Statute of Limitations
Bank of New York Mellon v. Citibank, 2/16/17, 2DCA/4
In 2006, borrower’s property was subject to a first trust deed, as well as a $500k second trust deed securing a line of credit with Citibank. Sneaky borrower refinanced the Citibank second for a higher amount ($600k), and almost simultaneously obtained a new line of credit for $1 million from Bank of New York’s predecessor (for ease, BNY). BNY’s loan was supposed to be in second position, and neither borrowers nor Citibank informed BNY of the new Citibank loan, despite opportunities to do so. It happened so quickly that BNY’s title search failed to pick up Citibank’s new trust deed. After BNY’s loan was made, a comedy of errors ensued; ultimately BNY paid down Citibank’s new second and everything seemed right as rain. That is, until Sneaky Borrower became Bad Borrower: It didn’t cancel the Citibank second and in 2007, it drew down $600,000 from the Citibank line of credit. In 2011, Borrowers defaulted and Citibank commenced foreclosure proceedings; BNY sued in 2013, alleging equitable subrogation, statutory violations and various torts. The trial granted Citibank’s demurrer without leave to amend based on Code Civ. Proc 338 three year statute of limitations. Held: Reversed
The facts of this case are somewhat involved. The key takeaway for those who litigate equitable subrogation issues: The statute of limitations for a declaratory relief and equitable subrogation claims are the same as the legal or equitable claim on which they are based. CCP 338(a) is a three year statute and applies to liabilities created by statute. On the other hand, Civil Code 882.020 has a 10- or 60-year statute of limitations for enforcing a power of sale in a deed of trust. To the extent that BNY claimed that Citibank violated a statute that required Citibank to reconvey the second trust deed once BNY paid it off, it would face a three year statute of limitations; to the extent that BNY asserted that it was equitably subrogated to Citibank’s position and its rights under the Citibank trust deed, BNY would be subject to the 10-/60 year statute.
BNY apparently pled these theories in the alternative (it’s totally okay to plead in the alternative), and argued one or other theory with more or less force at the trial and the appellate levels. Citibank argued that BNY had waived key arguments by not making them. Nonetheless, the appellate court said that Citibank’s demurrer failed as a matter of law — BNY’s complaint had in fact alleged that BNY was equitably subrogated to Citibank’s trust deed. Thus, the demurrer should have been overruled.
A few other notes of interest:
The payoff of Citibank’s deed of trust securing a line of credit was insufficient to terminate the lien because the second expressly secured future advances. In order to terminate the Citibank second, the borrowers would have had to sign a termination letter, which they did not do.
The doctrine of equitable subrogation implies a right to recover from the principal debtor when the subrogee pays the debtor’s obligation to a creditor in order to protect the subrogee’s own interest. That doctrine most often applies in insurance cases, but it applies in this context too.
An Appellate Affirmance that Reaches only Some Issues Can Still Result in Total Claim Preclusion; But Issue Preclusion Applies Only to Those Issues Actually Decided by the Appellate Court
Samara v. Matar, 2/15/17, 2DCA/7
Plaintiff sued two dentists in the same practice for dental malpractice concerning an implant procedure and post-op care. The employee dentist filed for summary judgment based on the statute of limitations and the absence of evidence of causation. (Plaintiff’s expert declaration didn’t use the critical words to a “reasonable degree of medical certainty,” and was therefore ineffective to raise a triable issue of fact on causation.) The trial court granted the motion on both grounds and plaintiff filed its first appeal. The first appellate court upheld the trial court’s ruling based solely on the statute of limitations, and did not reach the issue of causation. After remand, the supervising dentist filed his own summary judgment, arguing that the holding in the first appeal also established issue preclusion as to causation. The trial court agreed and granted supervising dentist’s motion. Held: Reversed.
Because dentist employer was in privity with dentist employee, claim preclusion could potentially apply to block plaintiff’s claim against supervising dentist. Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties [or those in privity with them] (3) after a final judgment on the merits in the first suit. As long as an appellate court affirms at least one ground on the merits, any other claim that was or could have been brought would be subsumed in the judgment, which operates as a merger or bar to any subsequent lawsuit based on the same primary right, whether or not the appellate court addressed the merits of that cause of action on appeal. However, claim preclusion could not apply in this case because the first appellate decision was based on the statute of limitations, which is a procedural matter and not a decision on the merits.
Issue preclusion depends on various factors including whether the issue was necessarily decided in a prior matter. Therefore, the same affirmance that can lead to claim preclusion will result in issue preclusion only for issues actually decided by the appellate court. The court cited a long line of authorities in support of this view, which is echoed by the Restatement Second of Judgments. A different rule would put pressure on appellate courts to discuss every issue raised in the judgment below, creating the judicial inefficiency that issue preclusion was intended to avoid in the first place.
(In case you’re wondering, the supervising dentist probably didn’t make a statute of limitations argument because he had rendered post-op care that apparently was within the statute of limitations.)
(In case you’re wondering, the supervising dentist probably didn’t make a statute of limitations argument because he had rendered post-op care that apparently was within the statute of limitations.)
Injured Cadets in the Police Academy Entitled to FEHA Protection and Reasonable Accommodation; Court Orders New Trial on Lost Future Earnings Award Based on 25+ Years of Assumed Future Employment
Atkins v. City of Los Angeles, 2/14/17 2DCA/7
Here, six police cadets suffered injuries at the Academy (knee injuries, broken ankles etc.) and couldn’t complete their training within the customary six months. They were assigned to temporary light duty positions the City had created for injured cadets, apparently on full salary. Historically, these positions were available to injured cadets indefinitely while they healed. When the economy turned in 2008, the City had to limit the duration of these temporary positions to six months. Plaintiffs had each been in their light duty assignments for over six months and were forced to resign. Even though they resigned, once they healed they could be reapply and would be accepted back into the Academy. None of them went back; instead they sued.
The jury awarded about $12 million in damages. The award included $6.5 million in future earnings based on the assumption that they would each remain as police officers their entire careers. Wow!! The City filed a motion for a new trial, but did not file a motion for judgment notwithstanding the verdict. The City appealed the denial of its motion for new trial on future damages. Held: Reversed, and new trial granted on lost future earnings.
In this context, FEHA generally prohibits three things: firing an employee because of his disability, the failure to provide a reasonable accommodation for a known disability, and the failure to engage in the interactive process. Each of these failures creates a separate cause of action.
A couple of additional facts: When hired, plaintiffs were qualified to be cadets but not police officers; and they initially performed the essential duties of cadets before they were injured. Also, the lost future salary was based on range of 25-33 years. I can’t help but say “Wow” again.
Now a few interesting observations about the case and the opinion:
With respect to the first claim, FEHA does not protect people who with or without a reasonable accommodation can’t perform the essential duties of his position. It was undisputed that plaintiffs were not qualified to perform the essential functions of police officers when they were terminated. The court rejected plaintiffs’ attempt to use a different job reference point for whether they were “qualified.” If plaintiffs were qualified for a different available job, that could support their claim for failure to provide a reasonable accommodation, but it does not support a cause of action for termination based on disability.
Second, the court upheld the finding that plaintiffs were denied a reasonable accommodation. While there is no general obligation to create a temporary light duty position for injured workers, if the company creates one that changes everything. The City had created a light duty position for injured cadets, and that was the reasonable accommodation as a matter of law. Plaintiffs were entitled to this accommodation even though they were probationary employees who, at that time of termination, did not qualify for the ultimate position of police officer. The court rejected the City’s argument that it had subsequently limited the temporary position to 6 months: The “City could not treat the plaintiffs differently than it had treated other recruit officers who were injured before the change in policy.” The key to the court was that these cadets entered into the program before the policy changed. Query: If an employer can eliminate a position even though it is held by a disabled employee, why can’t it redefine the position (including the length the position lasts) for budgetary reasons?
Finally, the court granted the City’s motion for a new trial on future damages. The award of future lost earnings of $6.5 million were based on what plaintiffs would have earned had they worked over 25 years. The court said that was speculative. No kidding. A plaintiff can get lost future salary if it is not speculative; the evidence must make them reasonably certain in their occurrence and extent. Here, plaintiffs’ expert “cited to no testimony, other evidence, or opinion on the likelihood that the plaintiffs would ever receive future earnings from the Department.” The expert just assumed that they would stay with the department for their entire careers. In addition, awarding front pay for an entire career is the exception and not the rule.
There was a missed opportunity on this point: The City moved only for a new trial on the future earnings, and the court gave them just that – plaintiffs get a do-over. If the City had moved for a judgment notwithstanding the verdict, it could have ended the matter for good.