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.
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