Atkins v. City of Los Angeles , 214 Cal. Rptr. 3d 113 ( 2017 )

Filed 2/14/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
RYAN ATKINS et al., B257890
Plaintiffs and Respondents (Los Angeles County
Super. Ct. No. BC449616)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Frederick C. Shaller,
Judge. Affirmed in part, reversed in part, and remanded.
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 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 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; Fullerton & Hanna, Lawrence J. Hanna;
Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and
Respondents.
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
2
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
3
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.
4
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
5
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
1 Penal Code section 832.4 and the corresponding POST
regulation that references that code section require recruits to
complete their training within 24 months “after his or her
employment.” (Pen. Code § 832.4, subd. (b); Cal. Code Regs.,
6
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 City. The Mayor‟s memorandum also
announced a “hard hiring freeze.” By March 2009, the City
Council recognized that, despite the City‟s efforts to reduce
spending, its fiscal health continued to deteriorate.
tit. 11, § 1012, subd. (b).) POST, the Department, and the Los
Angeles Police Protective League apparently interpreted the
phrase “after his or her employment” to mean after the date on
which the recruit is sworn.
7
Perhaps in response to the City‟s economic difficulties, a
Department management team decided in September 2009 to
enforce the six-month limit on assignments to the Recycle
program by informing recruits who had been in the program
longer than six months that they either had to return to the
Academy or be discharged from the Department. The Officer in
Charge of the Department‟s Training Division, Lieutenant Edgar
Palmer, acknowledged that this decision represented “a
significant and unprecedented change” in Department policy. He
explained, however, that keeping recruits in the Recycle program
longer than six months could compromise the Department‟s
public safety mission and exacerbate its budgetary concerns
because, for every recruit in the Recycle program, “that‟s
[another] position[] that you can‟t hire someone else into. And
the idea is to get the recruits into the Academy, get them through
the six months [of Academy training] and get them out on the
street where they can help public safety.” In 2012 the
Department ended the Recycle program entirely.
C. City Charter Section 1014 Transfers
If a recruit did not recover from his or her injuries and a
doctor declared the recruit‟s disability “permanent and
stationary,” the City sometimes placed the recruit in another City
job inside or outside the Department. The City made these
transfers through section 1014 of the Los Angeles Charter and
Administrative Code (City Charter section 1014). City Charter
section 1014, subdivision (a), allows the City to transfer a “civil
service employee” to another position where the employee is
“incapable of performing satisfactorily the duties of his or her
position because of injury, sickness or disability.” City Charter
8
section 1014, subdivision (b), provides that such transfers are
prohibited “if it would result in a promotion” and “unless the
employee possesses the minimum qualifications required for the
[new position] and the capability of performing the required
duties.” Between 2008 and 2010, the Department transferred six
recruits into other City positions under City Charter section
1014. The record does not indicate whether these recruits had
temporary injuries or were permanently disabled.
D. The Plaintiffs‟ Assignments to the Recycle Program
and Their Separations from the Department
1. Ryan Atkins
Atkins first entered the Recycle program in December
2008. He worked in two training center offices where he made
copies, delivered papers, filed documents, and entered data. In
February 2009 Atkins underwent surgery on his knee and then
spent over three months at home recuperating. Atkins returned
to the Recycle program in June 2009 and worked in the Tactics
Division where he entered data, filed documents, and set up
obstacles at a shooting range.
On September 20, 2009 Atkins was summoned to a meeting
with Lieutenant Palmer, Sergeant Irma Krish, who worked in the
Training Division with Palmer, and a representative from the
Police Protective League. Atkins said he suspected the
Department was going to fire him because he was asked to bring
with him any Department-issued equipment and because he
knew of other recruits in the Recycle program whom the
Department had laid off or terminated. Some of those recruits
had told Atkins about City Charter section 1014 transfers, so
9
during the meeting with Lieutenant Palmer, Atkins asked him
whether a transfer was possible. Atkins said Lieutenant Palmer
told him that City Charter section 1014 did not apply to his
situation.
Lieutenant Palmer then asked Atkins if he thought he
could return to the Academy, and Atkins said he thought he
could. Lieutenant Palmer told Atkins that if his doctor cleared
him to return to the Academy the Department would reinstate
him that day; otherwise he would have to resign or the
Department would terminate him.
Atkins met with his doctor the same day. He had hurt his
knee during week 18 of the training program and believed he
could return at roughly the same point in the program because
other recruits had told him that had been their experience.
Atkins therefore asked his doctor to clear him to return to week
19 of the program, a point at which, according to Atkins, the
training curriculum and activities were less strenuous. Upon
receiving that medical clearance, Atkins returned to Lieutenant
Palmer‟s office and was told to wait for Captain Michelle
Veenstra, the commanding officer of the Department‟s Training
Division. Some time later Sergeant Krish told Atkins she had
spoken with Captain Veenstra, who said that Atkins would have
to start over from the first week of the Academy because he had
been out for so long. Rather than accept this proposal, Atkins
resigned.
Atkins later explained that he resigned so that his
employment record would not reflect he had been terminated. He
also explained that going back to the first week of the Academy
would have exacerbated his knee injury. He acknowledged that
the Department said it would rehire him (and presumably start
10
his training at week one) when he had completely recovered from
his injuries. Eventually Atkins did fully recover, but he did not
return to the Department.
2. Douglas Boss
Boss first entered the Recycle program in March 2009. He
worked in a drill instructor‟s office and a training center office
where he processed travel authority documents, entered data,
and processed and audited time sheets. By June 2009, when
Boss had not fully recovered from his ankle injury, he became
concerned that he might “run out of time” to complete the
Academy training program. Captain Veenstra suggested that he
meet with a Department psychologist to discuss his concerns.
Boss said the psychologist told him in late June or early July that
Captain Veenstra said that Boss‟s “job” was “to heal” and that,
“whenever that time is, he will go back into an Academy class.”
The commander of the training division at the training center
office where Boss worked reiterated Captain Veenstra‟s message.
He said, “Just heal, don‟t worry about anything else,” and he told
Boss that he would “see to it that [Boss] go[es] back into an
Academy class once [he‟s] healed.”
On September 18, 2009 Sergeant Krish called Boss, told
him to meet with Lieutenant Palmer on September 24, and said
to bring his Department-issued equipment. On that day
Sergeant Krish met Boss outside Lieutenant Palmer‟s office and
told him, “Just so you know, Boss, you‟re to resign today or you‟re
going to be terminated. And if we terminate you, you will never
work in law enforcement again, anywhere.” Once inside
Lieutenant Palmer‟s office, Lieutenant Palmer told Boss that he
had been in the Recycle program for seven months, which
11
“exceeded [his] time limit.” Lieutenant Palmer said, “you either
resign or I fire you.” Boss explained to Lieutenant Palmer that
he could not resign because he would not qualify for
unemployment benefits, which he needed for his medical
expenses. Boss said Lieutenant Palmer then told Sergeant Krish
to “put [Boss] at home pending termination.” Boss asked if there
were any other jobs he could do, but Lieutenant Palmer said,
“There‟s no City jobs for you.” On November 24, 2009 Boss met
with Captain Veenstra, who presented him with termination
papers.
Boss received medical clearance to return to all physical
activity in the spring of 2010. He did not reapply to the
Department because Lieutenant Palmer had told him, “If we fire
you, you can‟t come back here.”
3. Justin Desmond
Desmond first entered the Recycle program in November
2008 after injuring his leg on his third day at the Academy.
About two months later he returned to the Academy but suffered
another injury and reentered the Recycle program. Desmond
worked in the Scientific Investigation Division where he entered
fingerprint information into a computer system. He also worked
at the POST Division and the drill instructor‟s office where he
entered data, answered phones, and did some filing.
Desmond said that Justin Fein, who supervised the recruits
assigned to the Recycle program at the time Desmond entered
the program, told Desmond that his “primary function” while in
the program was “to get healthy and to get better.” Fein also told
Desmond that if he did not recover he would “end up getting 1014
just like [Fein did].” Fein explained to Desmond that a “1014”
12
happened “when you got hurt with the Department and you ran
out of time in the Academy. [T]hey would transfer you to a
position that wouldn‟t violate your [medical]
restrictions. . . . Once you got healthy you would have the option
to come back to the Academy.” After Sergeant Krish took over
the Recycle program, Desmond said she told a group of recruits
that their “time was ticking and that if we didn‟t get healed soon
we would be forced to resign.”
In early 2010 Desmond said Sergeant Krish told him that
the Department would ask him to resign or, if he refused,
terminate him. In February 2010, while home recuperating from
surgery to repair his groin injury, Sergeant Krish called Desmond
and asked if he was ready to resign. When Desmond refused, he
said Sergeant Krish told him that “if I wanted to play hardball,
she would see to it that I never got a job in the City or law
enforcement” again. In March 2010 Desmond again told
Sergeant Krish that he would not resign, and the Department
officially terminated his employment on March 24, 2010.
Eventually Desmond said several doctors cleared him to
return to work, and in 2012 he and the Department entered into
an oral agreement that allowed him to return to the Academy.
Desmond, however, never returned to the Academy.
4. Anthony Lee
Lee entered the Recycle program in December 2008. He
worked in the offices of the Recycle program and a captain‟s office
where he made copies, filed papers, delivered mail, and entered
data. Lee said Fein told him his “job was to get better,” and “once
you get better, you will . . . get back into an Academy class.” Lee
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said Fein also told him that if he did not get better he would be
“civilianized,” meaning he would get another job with the City.
In July 2009 Lee had surgery on his knee, and in
September 2009 he was in a car accident that injured his
shoulder, neck, wrists, and back. The record suggests Lee
continued to work in the Recycle program while recuperating
from his surgery and his new injuries. After Lee had been in the
program more than six months, he said a sergeant who
supervised the drill instructors at the time told a group of
recruits that they had only six months to recuperate in the
program. Lee became concerned that he would lose his job.
In September 2009 Sergeant Krish ordered Lee to attend a
meeting with Lieutenant Palmer and asked him to bring his
Department-issued equipment. At the meeting Lieutenant
Palmer told Lee that if he resigned Palmer would recommend
that the Department rehire him when he recovered. Lee told
Lieutenant Palmer he did not want to resign. In response,
Lieutenant Palmer said, “Okay, then you‟ll be
terminated . . . [and] you won‟t be able to come back to [the
Department] ever again, and you won‟t be able to get into any
other law enforcement agency.” On November 24, 2009 Lee met
with Captain Veenstra who formally discharged him. In or about
2013 Lee fully recovered from his injuries.
5. Eriberto Orea
Orea entered the Recycle program in approximately
September 2008. At that time, an officer told him that if he could
not return to the Academy he could “civilianize” through a
“program called 1014.” When Orea reported for duty to the
program, Fein asked him about his education and work
14
experience and assigned him to work in the POST office where he
filed documents, made phone calls, and updated computer files.
Orea said that the position violated his medical restrictions
because he had to park a long distance from the office, walk down
a hill to get there, and walk up five flights of stairs to get into the
building and office. Upon informing Fein of these concerns, Orea
said Fein told him, “Too bad, that‟s your assignment.” Orea‟s
doctor eventually removed his work authorization, and the
Department assigned Orea to his home.
Orea had surgery on his knee in February 2009 and stayed
home to recover for several months. In June 2009 Fein called
Orea and told him he was being reassigned to “Personnel” under
Donna Baylosis. Orea thought that meant he would be
transferred under City Charter section 1014 because Fein and
others had told Orea that if he did not recover from his injury the
City would find him another job. Baylosis called Orea and asked
him about his education and work experience, and then she
called him on a weekly basis to discuss his ongoing medical
treatment. Baylosis also told Orea about the “1014 program,”
which Orea said Baylosis described as a program for recruits who
are injured and “don‟t recover.” Based on Orea‟s qualifications,
Baylosis stated that the City would determine whether there
were jobs with comparable pay and status that he could fill.
In September 2009 Baylosis told Orea he would have a
meeting with Sergeant Krish and Lieutenant Palmer on
September 23, 2009. Baylosis and Sergeant Krish separately told
Orea to plead his case at that meeting and to ask Lieutenant
Palmer to allow him to return to the Academy or to “civilianize.”
At the meeting, Lieutenant Palmer told Orea he had only two
options, resign or be terminated. Orea said he was “under the
15
impression [he] had the possibility of remaining as an injured
Recycle until [he] fully recovered or to civilianize, and once [he]
was better to go back to the Academy.” When Orea asked
Lieutenant Palmer if he could “do the 1014 and civilianize,”
Lieutenant Palmer said, “We‟re not doing that for you.” Orea
also offered to go into the next Academy class pending the results
of an MRI on his knee. Orea said Lieutenant Palmer responded,
“If you resign like you should, I‟ll write some good notes on your
file so you can be rehired; otherwise, I‟ll make it impossible for
you to join [the Department] or any other department.” Orea did
not resign.
Orea called Baylosis to tell her how the meeting went with
Lieutenant Palmer and Sergeant Krish. Baylosis then sent Orea
an email with a link to City job postings that differed from what
the general public could access. She also told Orea she thought
there would be a job posting for a Forensic Print Specialist in the
coming months and asked him to keep in touch and let her know
if he had any questions. The email she sent him also included a
link to information about upcoming civil service examinations.
Orea said he looked at the email Baylosis sent him and thanked
her for the information. Orea did not say whether he ever
investigated any of the job openings listed on the website
identified in Baylosis‟s email or the possibility of taking a civil
service exam.
On November 24, 2009 Orea met with Captain Veenstra
and a representative of the Police Protective League. Orea said
he started to tell Captain Veenstra about the progress he had
made in his recovery, but she told him there was nothing she
could do and she officially discharged him. She did tell him that
he could return to the Academy after he fully recuperated, but
16
based on his earlier meeting with Lieutenant Palmer (who
reported to Captain Veenstra), Orea did not believe he could
return to the Department. Eventually Orea fully recovered from
his injuries.
E. The Lawsuit
On November 16, 2010 the plaintiffs sued the City and
Police Chief Charlie Beck. The operative second amended
complaint alleged six causes of action, including unlawful
discharge from a training program based on physical disability,
mental disability, or medical condition in violation of FEHA;
failure to accommodate based on physical disability, mental
disability or medical condition in violation of FEHA; and failure
to engage in the interactive process based on physical disability,
mental disability or medical condition in violation of FEHA.2 The
plaintiffs eventually dismissed Beck with prejudice.
Trial began April 21, 2014. At the close of the plaintiffs‟
case, the City brought a motion for nonsuit on the ground that
the plaintiffs were conditional employees whose sole job was to
pass the Academy, who admittedly could not do so at the time
they separated from the Department, and who were not entitled
to a reasonable accommodation under FEHA. The City argued in
the alternative that it had accommodated the plaintiffs through
the Recycle program and by offering them the opportunity to
resign and return to the Academy when they had fully
recuperated. Finally, the City argued that it fulfilled its duty to
engage in the interactive process because that process “was
2 The plaintiffs did not proceed at trial on the other three
causes of action.
17
ongoing” from the time the plaintiffs suffered their injuries
through their assignments to the Recycle program.3
The trial court denied the motion to allow the jury to
determine whether the City unlawfully denied the plaintiffs the
same benefits that other recruits had received in the Recycle
program and under City Charter section 1014. With respect to
the plaintiffs‟ claim for failure to engage in the interactive
process, the court said the scope of actions the City should or
could have taken was a factual issue for the jury. “[R]ecognizing
it‟s a close call,” the court denied the City‟s motion.
The jury ultimately found in favor of the plaintiffs on all
three causes of action and awarded each plaintiff past and future
economic and noneconomic losses. In total, the jury awarded the
plaintiffs over $12 million. The court entered judgment on the
jury‟s verdict on May 21, 2014.
F. Posttrial Motions, Attorneys‟ Fees, and the Appeal
The City moved for a new trial and for judgment
notwithstanding the verdict, both of which the trial court denied.
The plaintiffs then filed a motion for attorneys‟ fees and costs.
On September 29, 2014 the trial court granted their motion and
awarded plaintiffs reasonable attorneys‟ fees in the total amount
of $1,632,110. The City timely appealed from the judgment
entered in favor of plaintiffs following the jury trial and from the
trial court‟s order denying the City‟s motion for judgment
notwithstanding the verdict. The City also timely appealed from
3 The City also argued that no evidence supported Atkins‟s
claim that the City constructively discharged him because he
voluntarily resigned. The City does not appeal the trial court‟s
adverse ruling on this ground.
18
the trial court‟s order granting attorneys‟ fees and costs to
plaintiffs. We consolidated the City‟s appeals.
DISCUSSION
“FEHA prohibits several employment practices relating to
physical disabilities. First, it prohibits employers from refusing
to hire, discharging, or otherwise discriminating against
employees because of their physical disabilities. [Citation.]
Second, it prohibits employers from failing to make reasonable
accommodation for the known physical disabilities of employees.
[Citation.] Third, it prohibits them from failing to engage in a
timely and good faith interactive process with employees to
determine effective reasonable accommodations.” (Nealy v. City
of Santa Monica (2015) 234 Cal. App. 4th 359, 371; see Lui v. City
and County of San Francisco (2012) 211 Cal. App. 4th 962, 970.)
“Separate causes of action exist for each of these unlawful
practices.” (Nealy, at p. 371; see McCaskey v. California State
Automobile Assn. (2010) 189 Cal. App. 4th 947, 987.)
The City challenges all three of the bases for its liability
under FEHA. With regard to the plaintiffs‟ discrimination claim,
the City argues that the plaintiffs failed to show a prima facie
case of discrimination because they could not perform the
essential functions of a police recruit even with reasonable
accommodations. In connection with the plaintiffs‟ claim for
failing to make reasonable accommodations, the City argues that
FEHA does not entitle what the City calls “pre-probationary
trainees” like the plaintiffs to reasonable accommodations, and,
even if it did, the plaintiffs failed to show that there was a
reasonable accommodation available for them. According to the
City, this failure also dooms the plaintiffs‟ claim for failure to
19
engage in the interactive process. Finally, the City challenges
the award of damages as “astonishing” and the award of
attorneys‟ fees as excessive.
A. Standard of Review
The standard of review on appeal from a trial court‟s denial
of a motion notwithstanding the verdict is “„“whether any
substantial evidence—contradicted or uncontradicted—supports
the jury‟s conclusion.”‟” (Webb v. Special Elec. Co., Inc. (2016) 63
Cal. 4th 167, 192; see Jorge v. Culinary Institute of America
(2016) 3 Cal.App.5th 382, 396.) “For evidence to be substantial, it
must be of ponderable legal significance, reasonable, credible,
and of solid value. [Citation.] The „focus is on the quality, not the
quantity, of the evidence.‟” (Jorge, at p. 396; see Lui, supra, 211
Cal.App.4th at p. 969.) “We resolve all evidentiary conflicts and
indulge all reasonable inferences in support of the judgment.”
(Jorge, at p. 396; see Webb, at p. 192; Cuiellette v. City of Los
Angeles (2011) 194 Cal. App. 4th 757, 765.)
“„Questions of statutory interpretation, and the
applicability of a statutory standard to undisputed facts, present
questions of law, which we review de novo.‟” (Cuiellette, supra,
194 Cal.App.4th at p. 765; see Jenkins v. County of Riverside
(2006) 138 Cal. App. 4th 593, 604.) “What plaintiff had to show in
order to prevail on his FEHA claim is a question of statutory
interpretation that we review de novo.” (Cuiellette, at p. 765.)
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B. Substantial Evidence Does Not Support the Jury‟s
Verdict that the City Discriminated Against the
Plaintiffs
FEHA makes it unlawful for an employer to discriminate
against an employee because of the employee‟s physical
disability. (Gov. Code, § 12940, subd. (a);4 Green v. State of
California (2007) 42 Cal. 4th 254, 262.) The City does not contest,
and we therefore assume for purposes of this appeal, that the
plaintiffs‟ temporary injuries constituted “physical disabilities”
under FEHA. (See § 12926, subd. (m).) Thus, we do not address
the argument by amici curiae that FEHA does not apply to such
temporary disabilities “with absolutely no long-term or
permanent impact.” (See Bullock v. Philip Morris USA, Inc.
(2011) 198 Cal. App. 4th 543, 572 [“[a]n amicus curiae ordinarily
must limit its argument to the issues raised by the parties on
appeal, and a reviewing court need not address additional
arguments raised by an amicus curiae”]; Rental Housing Owners
Assn. of Southern Alameda County, Inc. v. City of Hayward
(2011) 200 Cal. App. 4th 81, 95, fn. 13 [“[g]enerally, „an amicus
curiae accepts a case as he or she finds it,‟ and „additional
questions presented . . . by an amicus curiae will not be
considered‟”].)
Section 12940 specifically limits the reach of FEHA by
“„excluding from coverage those persons who are not qualified,
even with reasonable accommodation, to perform essential job
duties.‟” (Cuiellette, supra, 194 Cal.App.4th at p. 766; accord,
Green, supra, 42 Cal.4th at p. 262.) Section 12940, subdivision
(a)(1), provides: “This part does not prohibit an employer from
4 Undesignated statutory references are to the Government
Code.
21
refusing to hire or discharging an employee with a physical or
mental disability . . . where the employee, because of his or her
physical or mental disability, is unable to perform his or her
essential duties even with reasonable accommodations, or cannot
perform those duties in a manner that would not endanger his or
her health or safety or the health or safety of others even with
reasonable accommodations.”
Thus, “[s]ection 12940 does not classify all distinctions
employers make on the basis of physical disability as unlawful
discrimination.” (Cuiellette, supra, 194 Cal.App.4th at p. 766;
accord, Green, supra, 42 Cal.4th at p. 262.) “Instead, such
distinctions are prohibited „only if the adverse employment action
occurs because of a disability and the disability would not
prevent the employee from performing the essential duties of the
job, at least not with reasonable accommodation.‟” (Cuiellette, at
p. 766; see Green, at p. 262.) To establish that an employer has
discriminated on the basis of a disability in violation of FEHA,
the plaintiff employee has the burden of proving he or she could
perform “the essential functions of the job with or without
reasonable accommodation.” (Green, at p. 260; see Furtado v.
State Personnel Board (2013) 212 Cal. App. 4th 729, 744;
Cuiellette, at p. 766.)
FEHA defines “essential functions” as the “fundamental job
duties of the employment position the individual with a disability
holds or desires.” (§ 12926, subd. (f).) The City argues that,
because the City hired the plaintiffs as recruit officers, they must
show they were able to perform the essential functions of a police
recruit in order to be qualified individuals entitled to protection
under FEHA. The City argues that the plaintiffs cannot satisfy
22
their burden of proof under FEHA because they failed to show
that they could perform those essential functions.
The plaintiffs do not directly respond to the City‟s
argument. Instead, they contend that the relevant question is
whether they could perform the essential functions of the
positions to which they sought reassignment. The plaintiffs‟
argument improperly conflates the legal standards for their claim
under section 12940, subdivision (a), for discrimination, and their
claim under section 12940, subdivision (m), for failure to make
reasonable accommodation, including reassignment. In
connection with a discrimination claim under section 12940,
subdivision (a), the court considers whether a plaintiff could
perform the essential functions of the job held—or for job
applicants, the job desired—with or without reasonable
accommodation. (See Hastings v. Department of Corrections
(2003) 110 Cal. App. 4th 963, 971 [to establish a FEHA claim for
discrimination “the plaintiff must prove he is qualified for the
position for which an accommodation is sought,” not for another
position requested as a reassignment]; see also Furtado, supra,
212 Cal.App.4th at p. 755 [distinguishing in the context of a
failure to accommodate claim between the showing FEHA
requires of “those seeking a position and those already in the
position”].)
The question whether the plaintiffs could perform the
essential functions of a position to which they sought
reassignment is relevant to a claim for failure to accommodate
under section 12940, subdivision (m), and to a claim for failure to
engage in the interactive process under section 12940,
subdivision (o). (See Raine v. City of Burbank (2006) 135
Cal. App. 4th 1215, 1223 [reassignment may be required where
23
“the employee cannot be accommodated in his or her existing
position”]; Spitzer v. The Good Guys, Inc. (2000) 80 Cal. App. 4th
1376, 1389 [an employer generally has a duty under FEHA to
reassign a disabled employee whose limitations cannot be
reasonably accommodated in his or her current job]; Cal. Code
Regs., tit. 2, § 11068, subd. (d)(1)(A) [reassignment may be a
reasonable accommodation where “the employee can no longer
perform the essential functions of his or her own position even
with accommodation”]). Thus, for the plaintiffs‟ discrimination
claim, the issue is whether the plaintiffs could perform the
essential functions of a police recruit.
1. The “Essential Functions” of a Police Recruit
Evidence of “essential functions” may include the
employer‟s judgment, written job descriptions, the amount of
time spent on the job performing the function, the consequences
of not requiring employees to perform the function, the terms of a
collective bargaining agreement, the work experiences of past
incumbents in the job, and the current work experience of
incumbents in similar jobs. (§ 12926, subd. (f)(2); see Furtado,
supra, 212 Cal.App.4th at p. 743.) The record includes a variety
of evidence establishing that the essential functions of a police
recruit include rigorous physical demands and that the position‟s
qualifications include successful completion of the Academy
training program and obtaining POST certification.
The Department‟s Commanding Officer of Personnel
Division testified that, in general, recruit officers must be able to
perform the essential functions of police officers. The job posting
for a police officer at the time of the plaintiffs‟ separations from
the Department stated that officers “must be in excellent health,
24
with no conditions that would restrict [their] ability to safely
complete Academy training and perform police work.” This
requirement mirrors state law, which requires that peace officers
“be free from any physical, emotional, or mental condition that
might adversely affect the exercise of the powers of a peace
officer.” (§ 1031, subd. (f); see White v. County of Los Angeles
(2014) 225 Cal. App. 4th 690, 706 [standards of Government Code
section 1031 “are part of every peace officer‟s job description, and
must be maintained throughout a peace officer‟s career”].)5
The Department‟s specifications for the position of a police
officer also listed a variety of qualifications including the ability
to “[e]xert the physical stamina, strength, flexibility, and
coordination to pursue and restrain fleeing suspects and defend
oneself from physical attack.” Similarly, a Department document
titled “Essential Job Functions” stated that the position of police
officer “exists to perform the function[s]” of making forcible
arrests, controlling suspects, and searching, transporting, and
booking suspects, among other things. (See Lui, supra, 211
Cal.App.4th at p. 966 [identifying essential functions of a police
officer by reference to police department‟s “Sworn Members
Essential Job Functions” list].) This document also stated that
the “work experience of past or current” police officers included
5 “Physical condition is evaluated by a licensed physician and
surgeon. „[M]ental and emotional condition is . . . evaluated by a
psychiatrist or psychologist with five years[ ] experience in the
diagnosis and treatment of emotional and physical disorders, and
who has met education and training procedures set forth by the
California Commission on Peace Officer Standards and Training
designed for the conduct of preemployment psychological
screening of peace officers.‟” (California Dept. of Justice v. Board
of Administration etc. (2015) 242 Cal. App. 4th 133, 141.)
25
the Academy training program, an 18-month probationary period,
and POST certification.
The goal of the Academy training program was to ensure
police recruits could perform as required in the field. (See
Hastings, supra, 110 Cal.App.4th at p. 967.) Completing the
Academy training and obtaining POST certification requires
considerable physical strength and exertion. The Department‟s
Director of Police Training and Education testified that recruits
must be able to scale a five-foot wall, pass a self-defense test, and
successfully complete other physical tests. She stated that
recruits who fail a required physical test can retake that test, but
if a recruit fails a second time he or she is automatically expelled
from the Academy. Recruits must also meet all POST standards
before graduating from the Academy. According to the POST
Bureau Chief for Training Program Services, POST standards
require recruits to go over a six-foot fence in a certain amount of
time, sprint 500 yards, navigate an obstacle course that
simulates movements in a police foot chase, and drag a 150-160
pound dummy a certain distance.
The City‟s evidence showed that the essential functions of a
police officer or recruit included demanding physical tasks. The
plaintiffs did not introduce any evidence to the contrary.
2. Undisputed Evidence Shows The Plaintiffs
Could Not Perform the Essential Functions of a
Police Recruit Even With a Reasonable
Accommodation
The plaintiffs do not contend on appeal, nor did they
contend at trial, that they could have completed the Academy
training program or performed the essential functions of a police
26
officer at the time of their separations from the Department.
Indeed, none of the plaintiffs received medical clearance to
continue his training until well after he left the Department.
Instead, the plaintiffs argue that they met their burden of
proof by showing that they could perform the essential functions
of the position of a recruit officer with a reasonable
accommodation. Their suggested accommodation, however,
would eliminate one or more essential functions of the job of a
police recruit or officer, which renders the proposed
accommodation unreasonable as a matter of law for purposes of a
discrimination claim under section 12940, subdivision (a).
Under FEHA, “reasonable accommodation” means “„a
modification or adjustment to the workplace that enables the
employee to perform the essential functions of the job held or
desired.‟” (Furtado, supra, 212 Cal.App.4th at p. 745, italics
omitted; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)
166 Cal. App. 4th 952, 974.) While the reasonableness of an
accommodation is ordinarily a question of fact (Nealy, supra, 234
Cal.App.4th at p. 374; Raine, supra, 135 Cal.App.4th at p. 1227,
fn. 11), FEHA does not require employers to eliminate essential
functions of a job to accommodate a disabled employee. (See
Nealy, at p. 375 [“elimination of an essential function is not a
reasonable accommodation”]; Furtado, at p. 753 [waiving an
essential requirement would mean that the plaintiff “would not
have to demonstrate that he is a „qualified individual‟” under
FEHA]; Lui, supra, 211 Cal.App.4th at p. 985 [“FEHA did not
obligate defendant to accommodate plaintiff by excusing him
from the performance of essential functions”]; Cal. Code Regs.,
tit. 2, § 11068, subd. (b) [“[w]here a quality or quantity standard
is an essential job function, an employer . . . is not required to
27
lower such a standard as an accommodation”].) As the court in
Nealy explained, requiring employers to eliminate an essential
function of a job to accommodate a disabled employee “would be
at odds with the definition of the employee‟s prima facie case”
under FEHA. (Nealy, at p. 375.) The employee‟s burden includes
“showing he or she can perform the essential functions of the job
with accommodation, not that an essential function can be
eliminated altogether to suit his or her restrictions.” (Ibid.)
The plaintiffs contend that a reasonable accommodation
included transferring them to other City positions under City
Charter section 1014 or allowing them to remain in the Recycle
program, neither of which included the physical duties required
of police recruits. For purposes of the discrimination claim,
however, FEHA did not require the City to accommodate the
plaintiffs by eliminating an essential function of the position of
police recruit, such as modifying the Academy training program
or requirement, waiving the POST certification requirement, or
eliminating from a recruit officer‟s job duties the ability to make
forcible arrests and control suspects. (See Furtado, supra, 212
Cal.App.4th at p. 753 [plaintiff‟s “request that the Department
essentially waive an essential function of a position is not a
„reasonable accommodation‟”]; Hastings, supra, 110 Cal.App.4th
at p. 971 [plaintiff failed to establish a prima facie case of
discrimination under FEHA because “he is unable to perform the
essential functions of a correctional officer (even with reasonable
accommodation)”].) Thus, the plaintiffs failed to show that they
were “qualified individuals” under FEHA by showing that they
28
could perform the essential functions of a police recruit even with
reasonable accommodation.6
C. The Jury‟s Verdict That the City Failed To Make
Reasonable Accommodations for the Plaintiffs Is
Supported by Substantial Evidence and Is Not
Contrary to Law
The City argues that the jury‟s verdict finding the City
liable under section 12940, subdivision (m), for failing to make
reasonable accommodations must be reversed because, as a
matter of law, “pre-probationary trainees like plaintiffs” are not
entitled to accommodation by reassignment. Alternatively, the
City argues that the plaintiffs failed to show that funded, open,
and comparable positions for which they were qualified were
available at the time of their respective separations from the
Department.
6 Because we conclude that the plaintiffs failed to prove a
prima facie case for discrimination under section 12940,
subdivision (a), we do not consider whether, as the City argues,
the plaintiffs also failed to demonstrate that the City‟s reason for
constructively discharging the plaintiffs—the so-called two-year
rule—was pretextual. (See Nealy, supra, 234 Cal.App.4th at
p. 378 [evidence that an employer‟s stated reason for an adverse
employment action is pretextual becomes relevant only after the
plaintiff establishes his or her prima facie case and the employer
rebuts the presumption of discrimination by offering a legitimate,
nondiscriminatory reason for the adverse action]; accord,
Swanson v. Morongo Unified School District (2014) 232
Cal. App. 4th 954, 965; Jenkins, supra, 138 Cal.App.4th at p. 603.)
29
1. Reassignment as a “Reasonable
Accommodation” Under FEHA
FEHA imposes on employers the duty to reasonably
accommodate their employees‟ physical disabilities. (Cuiellette,
supra, 194 Cal.App.4th at p. 766; Scotch v. Art Institute of
California (2009) 173 Cal. App. 4th 986, 1003.) Specifically,
section 12940, subdivision (m)(1), makes it an unlawful
employment practice to “fail to make reasonable accommodation
for the known physical or mental disability of an applicant or
employee.” FEHA defines “reasonable accommodation” to include
“reassignment to a vacant position.” (§ 12926, subd. (p)(2); see
Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(N).) Whereas an
employer may not violate subdivision (a) of section 12940 by
terminating a disabled employee who cannot perform the
essential functions of his or her job even with a reasonable
accommodation, the employer may violate subdivision (m) of
section 12940 if the employer fails to reasonably accommodate
that employee by reassigning him or her to a comparable, vacant
position whose essential functions the employee can perform.
Where a disabled employee requests reassignment as an
accommodation, “FEHA requires the employer to offer the
employee „comparable‟ or „lower graded‟ vacant positions for
which he or she is qualified.” (Nealy, supra, 234 Cal.App.4th at
p. 377; see Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).)
FEHA does not require reassignment if there is no vacant
position the employee is qualified to fill. (Nealy, at p. 377;
Cuiellette, supra, 194 Cal.App.4th at p. 767; Spitzer, supra, 80
Cal.App.4th at p. 1389.) Nor does FEHA generally require the
employer to promote the employee or to create a new position for
30
the employee. (Nealy, at p. 377; Spitzer, at p. 1389; Cal. Code
Regs., tit. 2, § 11068, subd. (d)(4).)
“„[A]n employer is relieved of the duty to reassign a
disabled employee whose limitations cannot be reasonably
accommodated in his or her current job only if reassignment
would impose an “undue hardship” on its operations.‟”
(Cuiellette, supra, 194 Cal.App.4th at p. 767; see Spitzer, supra,
80 Cal.App.4th at p. 1389.) For example, FEHA may require as a
reasonable accommodation a finite leave of absence to allow an
employee time to recover from temporary injuries, but FEHA
does not generally require an employer to provide an indefinite
leave of absence to await possible future vacancies. (Nealy,
supra, 234 Cal.App.4th at pp. 377-378; Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 968.) An employer‟s policy or practice of
offering other employees the same or similar assistance or
benefits requested by the plaintiff, however, is relevant to
determining whether such assistance or benefits are
“reasonable.” (See Cuiellette, at p. 767; Raine, supra, 135
Cal.App.4th at p. 1227, fn. 10; Prilliman v. United Air Lines, Inc.
(1997) 53 Cal. App. 4th 935, 950-951.)
Like a claim for discrimination under section 12940,
subdivision (a), a claim for failure to accommodate under section
12940, subdivision (m), requires the plaintiff to show that he or
she is a “qualified individual” under FEHA. (See Furtado, supra,
212 Cal.App.4th at pp. 744-745; Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 977.) Where the plaintiff contends that an
employer failed to accommodate by reassigning him or her to
another position, “the plaintiff proves he or she is a qualified
individual by establishing that he or she can perform the
essential functions of the position to which reassignment is
31
sought, rather than the essential functions of the existing
position.” (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th
245, 255-256; accord, Furtado, at p. 755; Nadaf-Rahrov, at p. 977;
see Lui, supra, 211 Cal.App.4th at p. 971; Cuiellette, supra, 194
Cal.App.4th at p. 769.) “Arguably, [the] plaintiff‟s burden of
proving he is a qualified individual includes the burden of
proving which duties are essential functions of the positions he
seeks.” (Lui, at p. 972.)
The duty to reasonably accommodate a disabled employee
is a continuing one that is not exhausted by one effort. (Swanson
v. Morongo Unified School District (2014) 232 Cal. App. 4th 954,
969.) “A single failure to reasonably accommodate an employee
may give rise to liability, despite other efforts at accommodation.”
(Ibid.; accord, A.M. v. Albertsons, LLC (2009) 178 Cal. App. 4th
455, 464-465.)
2. An Employer‟s Duties Under FEHA, Including
the Duty To Provide Reassignment as a
Reasonable Accommodation, Extends to
Probationary or “Pre-Probationary” Employees
FEHA requires reassignment as a reasonable
accommodation for employees, but not applicants. (See Cal. Code
Regs., tit. 2, § 11068, subd. (d)(1) [as a reasonable
accommodation, an employer may offer “an employee” a suitable,
vacant position for which “the employee” is qualified].)
Applicants are not entitled to reassignment because, unlike
employees, they have never performed the essential functions of
the original position and therefore are not initially qualified
individuals under FEHA. (See Quinn v. City of Los Angeles
(2000) 84 Cal. App. 4th 472, 483 [employer had no obligation
32
under FEHA to accommodate an employee who “was never
qualified to be hired from the outset”]; see also Equal
Employment Opportunity Com., Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (2002) § 25 (EEOC Guidance),
available at
https://www.eeoc.gov/policy/docs/accommodation.html; 29 C.F.R.
Pt. 1630, App., § 1630.2(o).)7
7 The EEOC‟s Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with
Disabilities Act states that an employee who “has never
adequately performed the essential functions” of his or her job “is
not entitled to reassignment because s/he was never „qualified‟ for
the original position.” (EEOC Guidance, supra, at § 25.) Any
such employee “is similar to an applicant who applies for a job for
which s/he is not qualified, and then requests reassignment,” but
“[a]pplicants are not entitled to reassignment.” (Ibid.) Similarly,
the EEOC‟s Interpretive Guidance on Title I of the Americans
With Disabilities Act, published as an appendix to 29 Code of
Federal Regulations Part 1630, states: “In general, reassignment
should be considered only when accommodation within the
individual‟s current position would pose an undue hardship.
Reassignment is not available to applicants. An applicant for a
position must be qualified for, and be able to perform the
essential functions of, the position sought with or without
reasonable accommodation.” (29 C.F.R. Pt. 1630, App.,
§ 1630.2(o).) The EEOC‟s “definition of „reasonable
accommodation‟ appropriately guides our construction of the
state laws” because “the California Legislature has modeled the
reasonable accommodation requirements of section 12940(m) and
section 12940(n) on the parallel federal requirements.” (Nadaf-
Rahrov, supra, 166 Cal.App.4th at p. 974; see also Spitzer, supra,
80 Cal.App.4th at p. 1384.)
33
The City argues that FEHA did not require it to
accommodate the plaintiffs by reassigning them to another
position because, as “pre-probationary” employees who never
completed their Academy training or probationary field
assignments, the plaintiffs never qualified to become police
officers and thus were not “qualified individuals” for purposes of
their claim for failure to make reasonable accommodations. In
essence, the Department argues we should treat the plaintiffs
like applicants for employment in the Department rather than
employees of the Department. We find no basis in the statute or
other authorities for making “pre-probationary,” probationary, or
other employees in training ineligible for reassignment where
such an accommodation is otherwise reasonable.
a. FEHA applies to probationary and so-
called “pre-probationary” employees
In Hastings v. Department of Corrections (2003) 110
Cal. App. 4th 963 the court stated, “Whether a probationary
employee is entitled under the FEHA to reassignment to a vacant
position appears to be one of first impression,” but the court
never answered that question. (See id. at p. 972.) Instead, while
concluding the plaintiff in that case did not qualify for the
position to which he sought reassignment, the court in Hastings
did not address whether FEHA would have required the
employer to reassign him to that position if he had been qualified
for it. (See id. at pp. 976-977.)
In Swanson v. Morongo Unified School District, supra, 232
Cal. App. 4th 954 the court held that FEHA protects
“probationary” employees, including by requiring reassignment,
where such reassignment is reasonable. (Id. at pp. 967-968, 970.)
34
In that case an “untenured, probationary teacher” sued a school
district under FEHA for not renewing her teaching contract after
the teacher had requested a new assignment that would have
accommodated her medical condition. (Id. at p. 967.) The school
district argued that, because the plaintiff had no right to renewal
of her contract, the district could assign her to any teaching
position it deemed appropriate. (Ibid.) The court disagreed,
stating that “[n]either [the plaintiff‟s] probationary status nor the
District‟s discretion to make teaching assignments deprives [the
plaintiff] of the FEHA‟s protections or otherwise allows the
District to unlawfully discriminate against her.” (Ibid.) The
court observed that, if FEHA did not protect probationary
employees because they could be terminated at any time, FEHA
“would never apply to an at-will employee,” which clearly is not
the law. (See id. at p. 968.)
We acknowledge that the plaintiff in Swanson, unlike the
plaintiffs in this case, was a veteran teacher of over 30 years, who
was not in training at the time her employer allegedly refused to
accommodate her medical condition. (See Swanson, supra, 232
Cal.App.4th at p. 959.) Nevertheless, we agree with the Swanson
court‟s conclusion that an employee‟s probationary status does
not, in and of itself, deprive an employee of the protections of
FEHA, including a reasonable reassignment. The statute does
not distinguish between the types of reasonable accommodations
an employer may have to provide to employees on probation or in
training and those an employer may have to provide to other
employees. We decline to read into FEHA a limitation on an
employee‟s eligibility for reassignment based on an employee‟s
training or probationary status. (See Kunde v. Seiler (2011) 197
Cal. App. 4th 518, 531 [“„“[u]nder the standard rules of statutory
35
construction, we will not read into the statute a limitation that is
not there”‟”]; Friends of Lagoon Valley v. City of Vacaville (2007)
154 Cal. App. 4th 807, 826 [“it is not the court‟s place to insert
words into the statute”].) Instead, the trier of fact should
consider whether an employee is on probation or in training in
determining whether a particular reassignment is comparable in
pay and status to the employee‟s original position. (See Nealy,
supra, 234 Cal.App.4th at p. 377; Cal. Code Regs., tit. 2, § 11068,
subd. (d)(1), (2).)
Moreover, as the court in Swanson observed, probationary
or otherwise untenured employees are akin to at-will employees
under FEHA. (Swanson, supra, 232 Cal.App.4th at p. 968.) As
with at-will employees, employers ordinarily can terminate
probationary employees without good cause, notice, or a hearing.
(California School Employees Assn. v. Governing Bd. of East Side
Union High School Dist. (2011) 193 Cal. App. 4th 540, 543, fn. 2.)
FEHA nevertheless prohibits unlawful discrimination against
such employees and entitles them to reassignment where
reasonable. (Jensen, supra, 85 Cal.App.4th at pp. 250, 266 [at-
will employee stated claim for failure to provide reasonable
accommodation by reassignment]; cf. Rosenfeld v. Abraham
Joshua Heschel Day School, Inc. (2014) 226 Cal. App. 4th 886, 898
[“[a]t-will employees, like other employees, are protected [by
FEHA] from terminations which are „motivated by legally
proscribed, invidious discriminatory attitudes, such as animus
toward a particular race or gender‟”]; McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal. App. 4th 1510, 1524 [the reason
for terminating an at-will employee “need not be wise or correct
so long as it is not grounded on a prohibited bias”].) FEHA
entitles probationary and “pre-probationary” employees, like at-
36
will employees, to reasonable accommodation by reassignment in
appropriate circumstances.
b. Determining whether probationary
employees are “qualified” for
reassignment
As noted, where a FEHA plaintiff claims an employer failed
to accommodate by reassigning him or her to another position,
“the plaintiff proves he or she is a qualified individual [under
FEHA] by establishing that he or she can perform the essential
functions of the position to which reassignment is sought, rather
than the essential functions of the existing position.” (Jensen,
supra, 85 Cal.App.4th at p. 256; see Furtado, supra, 212
Cal.App.4th at p. 755; Nadaf-Rahrov, supra, 166 Cal.App.4th at
p. 977.) To distinguish between employees who may be entitled
to reassignment and applicants or others who were never
qualified for the job in the first instance, however, a plaintiff
alleging a FEHA violation based on the failure to reassign must
also show, as the City argues, that he or she actually performed
the essential duties of the original position for some period of
time. (See Quinn, supra, 84 Cal.App.4th at p. 483 [city had no
obligation to explore possible accommodations for officer who
“was never qualified to be hired from the outset”].)
The City argues the relevant yardstick for evaluating
whether the plaintiffs qualify for reassignment is the position of a
police officer, not a police recruit. According to the City, because
the plaintiffs never completed the Academy and thus never
performed the essential functions of a police officer, they are not
entitled to reassignment. In support, the City points primarily to
the EEOC Guidance, which “sets forth an employer‟s legal
37
obligations regarding reasonable accommodation” under the
federal Americans with Disabilities Act (ADA). The EEOC
Guidance answers the question, “Is a probationary employee
entitled to reassignment?” as follows: “Employers cannot deny a
reassignment to an employee solely because s/he is designated as
„probationary.‟ An employee with a disability is eligible for
reassignment to a new position, regardless of whether s/he is
considered „probationary,‟ as long as the employee adequately
performed the essential functions of the position, with or without
reasonable accommodation, before the need for a reassignment
arose.” (EEOC Guidance, supra, § 25.)
The EEOC Guidance continues: “The longer the period of
time in which an employee has adequately performed the
essential functions, with or without reasonable accommodation,
the more likely it is that reassignment is appropriate if the
employee becomes unable to continue performing the essential
functions of the current position due to a disability. If, however,
the probationary employee has never adequately performed the
essential functions, with or without reasonable accommodation,
then s/he is not entitled to reassignment because s/he was never
„qualified‟ for the original position. In this situation, the
employee is similar to an applicant who applies for a job for
which s/he is not qualified, and then requests reassignment.
Applicants are not entitled to reassignment.” (Ibid., italics
added.)
The EEOC Guidance thus provides that probationary
employees may be entitled to reassignment unless they could
never perform the essential functions of their “original position.”
Contrary to the City‟s argument, the EEOC Guidance does not
identify the “original position” as the position to which a
38
probationary employee may be promoted upon completion of his
or her probation. In fact, the EEOC Guidance does not appear to
contemplate circumstances in which, as here, an employee is
hired into a training program from which he or she graduates
into a different position. With regard to probationary employees
in general, however, the EEOC Guidance requires employers to
offer a reasonable reassignment so long as a disabled employee
had performed the essential functions of his or her “current
position” before requesting reassignment, not the position the
employee would hold upon completing probation. (See EEOC
Guidance, supra, § 25 [reassignment may be appropriate “if the
employee becomes unable to continue performing the essential
functions of the current position,” italics added]; ibid. [providing
an example of an employee who “work[ed] successfully” in her
“current position” for nine months before requesting
reassignment due to disability]; ibid. [reassignment is not
required where an employee “was never able to perform the
essential functions of the position . . . for which he was hired,”
italics added].) This interpretation is consistent with the cases
cited by the City for its interpretation of the EEOC Guidance and
with California authorities.
The City cites a federal district court‟s unpublished
decision in O‟Brien v. Napolitano (N.D. Cal. Feb. 8, 2012, C 10-
01830 EDL) 2012 WL 423732, which, unlike the EEOC Guidance,
is closer to this case because it involves a probationary employee
hired into a training position. The court in O‟Brien held that the
plaintiff in that case was “not entitled to reassignment as an
accommodation because she was a probationary employee who
did not pass the training requirement and never adequately
performed the essential functions” of her job. (Id. at p. 17, italics
39
added.)8 As in this case, the plaintiff in O‟Brien was hired into a
two-year training program, at the successful conclusion of which
she could be “converted to a career or career-conditional
appointment.” (Id. at p. 2.) Also as in this case, the essential
functions of the plaintiff‟s training program and the eventual
career position included strenuous physical activity. (Id. at
p. 10.) Unlike this case, however, the undisputed evidence in
O‟Brien showed that the plaintiff was never able to perform
certain essential functions of her training position, not even for a
single day, because she had been diagnosed with a debilitating
medical condition before she was hired into the training program.
(Id. at p. 4.) Moreover, the court in O‟Brien emphasized that
under some scenarios probationary employees can be entitled to
accommodation by reassignment. (See id. at p. 46 [citing
Kennelly v. Pennsylvania Turnpike Commission (E.D. Pa. 2002)
208 F. Supp. 2d 504, which held that a probationary employee may
be entitled to reassignment where the employee was qualified to
8 In rejecting the plaintiff‟s claim for failure to accommodate
under the ADA, the court in O‟Brien appears to have relied both
on the plaintiff‟s status as a probationary employee and on the
fact that she had not performed the essential functions of her job.
(O‟Brien, at pp. 10-11.) The case cited by O‟Brien, Kennelly v.
Pennsylvania Turnpike Commission (E.D. Pa. 2002) 208
F. Supp. 2d 504, involved a probationary employee, but that fact
was not a factor in the Kennelly court‟s decision to deny the
employer‟s motion for summary judgment. Instead, the court in
Kennelly concluded that there was a genuine issue of material
fact regarding whether the employee was “„qualified‟ for the
original position” because of his disability. (Kennelly, at p. 513.)
The plaintiff‟s status as a probationary employee was not legally
significant in that case.
40
perform the duties of his original position before becoming
disabled].)
The facts in O‟Brien were similar to those in Quinn v. City
of Los Angeles, supra, 84 Cal. App. 4th 472, another case on which
the City relies. In Quinn, a former police officer sued the City
under FEHA after the Department terminated his employment.
(Id. at p. 475.) At the time the plaintiff originally applied, he had
a hearing impairment, which he disclosed to the Department.
(Id. at p. 476.) As an applicant he failed a “sound localization
test” and thus failed the requisite medical exam. (Id. at pp. 476-
477.) As a result of a clerical error, however, the Department
hired the plaintiff into the Academy, which he successfully
completed. (Id. at p. 477.) After becoming a probationary patrol
officer the plaintiff‟s condition interfered with his ability to hear
the police radio and his partner‟s instructions, and the
Department assigned him to a desk job before ultimately
terminating his employment. (Ibid.) Following a jury verdict in
favor of the plaintiff, the Court of Appeal reversed, holding that
the plaintiff could not prevail on a claim for discrimination under
FEHA because “uncontradicted evidence” (id. at p. 482) showed
the plaintiff “was never initially qualified for the position from
which he was discharged” (id. at p. 483). The court distinguished
this fact pattern from one in which “an employee properly
hired . . . subsequently suffers an adverse employment decision
because of his disability.” (Ibid.)
This case involves the fact pattern the court in Quinn
distinguished. The City in this case never contended the
plaintiffs were not “properly hired” or could not adequately
perform the essential functions of a police recruit before they
were injured. Instead, the City argues that employees like the
41
plaintiffs should not be entitled to any reasonable accommodation
including reassignment.9 Neither FEHA nor any other authority
cited by the City or its amicus curiae supports this argument.
Instead, those authorities support the conclusion that
probationary and “pre-probationary” employees in training are
entitled to the benefits and protections of FEHA, including the
right to reasonable accommodations.
Where such an employee alleges a FEHA violation based on
the failure to reassign him or her to another position, the
employee has the burden to prove he or she had adequately
performed the essential functions of the position he or she held
for some period of time before becoming disabled. The City does
not contest that the plaintiffs were able to perform the essential
functions of a police recruit at the time they were hired, nor that
each of them performed those duties, even if only for a relatively
short time. As the EEOC Guidance explains, the question then
becomes whether the period of time in which the plaintiffs
adequately performed the duties of a police recruit makes
reassignment a “reasonable” accommodation. (See EEOC
Guidance, supra, § 25.) Whether reassigning the plaintiffs to
another position was “reasonable” is a question of fact for the
9 The City also argues that, as “pre-probationary employees,”
the plaintiffs “were not even entitled to any due process rights for
termination.” (See Cilderman v. City of Los Angeles (1998) 67
Cal. App. 4th 1466, 1471 [probationary officer “was afforded the
due process appropriate to his status as a probationary
employee”].) Whether the plaintiffs were entitled to the due
process rights of tenured officers, however, is not relevant to the
City‟s obligations under FEHA, which extend to both
probationary and non-probationary employees.
42
jury. (See Nealy, supra, 234 Cal.App.4th at p. 374 [the
“reasonableness of an accommodation generally is a question of
fact” for the jury]; accord, Raine, supra, 135 Cal.App.4th at
p. 1227, fn. 11; Hanson v. Lucky Stores, Inc. (1999) 74
Cal. App. 4th 215, 228, fn. 11.)10
3. Reassignment to the Recycle Program Was
Legally and Factually Reasonable
The City argues that FEHA did not require it to reassign
plaintiffs to other positions with the City or to the Recycle
program until the plaintiffs healed or their disabilities became
permanent. We conclude that reassignment to the Recycle
program until the plaintiffs recovered or became permanently
disabled was not unreasonable under the facts of this case and
10 The City observes that recruits are hired into “temporary
training positions” under Los Angeles Civil Service Rule 5.30, but
does not argue that the plaintiffs are not entitled to
accommodation by reassignment for this reason. Amici curiae
take this position, citing Jenkins, supra, 138 Cal. App. 4th 593 for
the proposition that employers of temporary employees have no
duty to accommodate those employees by reassigning them to
permanent positions. (See id. at p. 604.) Jenkins makes clear,
however, that its holding and the designation of the employee in
that case as “temporary” depend on the facts and ordinances at
issue in the case. (See id. at pp. 603-607.) Because the parties in
this case have not briefed this issue, we do not reach it. We note,
however, that the City‟s past practice of accommodating injured
recruits in the Recycle program for various periods of time and
through City Charter section 1014 transfers is inconsistent with
the position that such recruits were mere “temps” with limited
rights like the plaintiff in Jenkins.
43
that substantial evidence supports the jury‟s verdict that the
plaintiffs were qualified for such an assignment.11
a. Reassignment to a temporary
position is not unreasonable as a matter
of law
The City contends that reassigning the plaintiffs to the
Recycle program until they recovered or became permanently
disabled is per se unreasonable because FEHA does not require
employers to temporarily accommodate injured employees
indefinitely or to convert a temporary position into a permanent
one. The City‟s statement of the law is not entirely correct.
While FEHA does not require such accommodations, the law is
that, to the extent an employer‟s policies or practices indicate
such accommodations are reasonable, an employer may violate
FEHA by not making those accommodations available to all
employees.
In Raine, supra, 135 Cal. App. 4th 1215 this court
acknowledged that FEHA does not require an employer to make
a disabled employee‟s temporary assignment permanent or to
create a new position for a disabled employee, “at least when the
employer does not regularly offer such assistance to disabled
employees.” (Raine, at pp. 1226, 1228, italics added; see Lui,
supra, 211 Cal.App.4th at p. 982.) In Raine the City of Burbank
assigned the plaintiff, a disabled police officer, to a desk job while
he recuperated from injuries. When his disability became
permanent, the plaintiff asked the City of Burbank to assign him
11 We do not consider whether a transfer under City Charter
section 1014 to another City department was reasonable and
supported by the evidence.
44
permanently to the desk job, a position normally reserved for
civilians. (Raine, at pp. 1219-1220.) The evidence showed that
the “only persons working the front desk on a permanent basis
[were] civilian police technicians.” (Id. at p. 1226.) Thus, this
court held that the requested reassignment was unreasonable
under FEHA. (Id. at p. 1227 & fn. 11.) We explained, “an
employer has no duty (absent perhaps workplace precedent
suggesting its reasonableness) to accommodate a disabled
employee by making a temporary accommodation permanent if
doing so would require the employer to create a new position just
for the employee.” (Id. at p. 1227, fn. omitted, italics added.)
Cuiellette illustrates how such workplace precedents can
affect an employer‟s duties under FEHA. In Cuiellette the Los
Angeles Police Department assigned a permanently disabled
officer to a “purely administrative assignment requiring no field
work.” (Cuiellette, supra, 194 Cal.App.4th at p. 761.) Several
days later the Department informed the officer that the City
“could not allow him to work because he was „100% disabled.‟”
(Id. at p. 762.) At that time, however, “„the City of Los Angeles
had a longstanding policy and practice of allowing sworn officers
to perform “light duty” assignments that did not entail several
essential functions of a peace officer such as making arrests,
taking suspects into custody, and driving a police vehicle in
emergency situations.‟” (Ibid.) A lieutenant in the Department
testified that, during his tenure with the Department, the City
accommodated hundreds of disabled officers by placing them in
light-duty assignments. (Ibid.) Indeed, even though the City had
identified the essential duties of a police officer to include
strenuous physical tasks that disabled officers could not perform,
“„the City maintained permanent “light duty” vacancies in the
45
drug testing and fugitive warrants units for the specific purpose
of accommodating disabled officers who wanted to continue to
work.‟” (Id. at pp. 762-763.)
Following a court trial, the trial court found that the City
violated FEHA because it denied the plaintiff the accommodation
he sought even though the City had an “informal policy” of
“„permanently assigning disabled officers to positions that did not
require many of the essential functions of a sworn police officer.‟”
(Cuiellette, supra, 194 Cal.App.4th at p. 763.) In affirming, the
Court of Appeal acknowledged the holding of Raine and the
general proposition that FEHA does not require an employer to
make a temporary position available indefinitely to accommodate
a disabled employee, but found Raine factually distinguishable
because the Department had not restricted the placement of
disabled officers into temporary light-duty jobs at the time the
plaintiff sought that assignment. (Cuiellette, supra, at pp. 767-
769.)
Similarly, in Lui, the court held that the reasonableness of
a particular accommodation must be determined in light of an
employer‟s policies and practices. There, unlike the
circumstances in Cuiellette, the San Francisco Police Department
changed its policy of allowing injured police officers to remain in
light-duty jobs indefinitely long before the plaintiff in that case
sought such an accommodation. (Lui, supra, 211 Cal.App.4th at
p. 965.) Thus, when the employment of the plaintiff police officer
in Lui approached a one-year time limit on his light-duty
assignment, the San Francisco Police Department told the
plaintiff he could seek a transfer to another city job, disability
retirement, an unpaid leave of absence, or sick or family medical
46
leave, but he could not stay in his light-duty desk job indefinitely.
(Id. at p. 966.)
The court in Lui held that the San Francisco Police
Department had not violated FEHA and found that the facts in
that case were more like those in Raine than those in Cuiellette.
(Lui, supra, 211 Cal.App.4th at pp. 982-983.) The court
explained: “Cuiellette supports the proposition that employers
must provide accommodations into permanent light-duty
assignments if such assignments exist; Cuiellette does not
support the proposition that employers are required to create
permanent light-duty assignments to accommodate disabled
employees.” (Lui, at pp. 982-983.) The San Francisco Police
Department‟s policy in force at the time the plaintiff became
disabled assigned injured officers to administrative positions on a
temporary basis only. Thus, the San Francisco Police
Department “was not obligated to make plaintiff‟s [light-duty]
assignment permanent, or to convert a different administrative
position into a permanent light-duty position exempt from the
duties in the [essential duties] List.” (Lui, at p. 983.)
This case is more like Cuiellette than Raine and Lui. As in
Cuiellette, the Department had a longstanding practice of
allowing injured recruits to remain in the Recycle program
indefinitely until they healed and could return to the Academy or
until their disabilities became permanent. Lieutenant Palmer
described the new policy of restricting injured recruits‟
assignments in the program to six months as “a significant and
unprecedented change” in Department policy. That change
occurred in September 2009, long after the plaintiffs became
injured and entered the Recycle program. While FEHA does not
require the Department to accommodate recruit officers injured
47
after the change in policy by allowing them to remain in the
Recycle program indefinitely, the City could not treat the
plaintiffs differently than it had treated other recruit officers who
were injured before the change in policy. Indeed, in Lui when the
San Francisco Police Department changed a similar policy it
“grandfathered in” the officers accommodated under the old
policy. (See Lui, supra, 211 Cal.App.4th at p. 966.)
We do not question the sincerity of the City‟s position that
it had legitimate reasons to end the Recycle program, and that,
going forward, Raine “instructs that the City is not obligated to
revive this non-functional program.” Nevertheless, having
created the Recycle program and allowed past recruit officers to
stay in the program until they recovered or became permanently
disabled, the City could not deny the same accommodation to the
plaintiffs, who entered the program before the City‟s change in
policy. (See Claudio v. Regents of University of California (2005)
134 Cal. App. 4th 224, 228 [in “unusual circumstances, created by
the [defendant] itself, we cannot say it was unreasonable as a
matter of law for plaintiff to request” a particular
accommodation]; see also U.S. Airways, Inc. v. Barnett (2002) 535
U.S. 391, 405-406 [an unreasonable accommodation may become
reasonable in light of an employer‟s policy or even exceptions to
that policy].)12
12 The City also failed to convince the jury that allowing the
plaintiffs to remain assigned to the Recycle program longer than
six months was unreasonable in light of the fact that each of the
plaintiffs signed the Revised Recruit Officer Recycle Policy
limiting assignments to the Recycle program to six months.
Notably, that Policy does not state whether recruits who cannot
48
b. The plaintiffs were qualified for and
capable of performing the essential
functions of an assignment to the Recycle
program
At trial the plaintiffs did not explicitly identify the
essential functions of their positions in the Recycle program or
introduce testimony of their qualifications for those positions.
Each of the plaintiffs, however, identified his duties in the
Recycle program as including filing, answering phones, entering
data, processing paperwork, and performing other clerical work,
and the plaintiffs spent a considerable time performing these
duties. The City never contested the plaintiffs‟ abilities to
perform the jobs assigned to them in the Recycle program, nor
did the City contend that the plaintiffs were not qualified for
those jobs. Thus, because all of the plaintiffs had in fact
performed satisfactorily while in the Recycle program,
substantial evidence supports the jury‟s finding that the plaintiffs
were qualified for and capable of performing the essential
functions of a position in the Recycle program until they
recovered fully or their disabilities became permanent. (See
Cuiellette, supra, 194 Cal.App.4th at p. 763 [by having performed
the administrative duties assigned to him, the plaintiff “proved
that he could perform the essential functions of the position he
aspired to fill and actually filled for a brief period of time”]; id. at
pp. 762, 772 [trial court‟s finding that the plaintiff could perform
the essential duties of a desk assignment he filled for “several
days” supported the plaintiff‟s claim for failure to accommodate
by reassignment].)
remain in the Academy would be terminated or transferred,
where possible, to another Department or City position.
49
4. The City Failed To Demonstrate That Assigning
the Plaintiffs to the Recycle Program Would
Cause Undue Hardship
Although the City does not make the argument on appeal,
at trial the City suggested that maintaining the Recycle program
for the benefit of the plaintiffs and similarly situated recruits
would have caused the City undue hardship. The City, however,
failed to convince the jury that any hardship was sufficient to
make an otherwise reasonable accommodation unreasonable.13
Section 12940, subdivision (m)(1), places the burden of
demonstrating undue hardship on the employer. (Wallace v.
County of Stanislaus (2016) 245 Cal. App. 4th 109, 126-127;
Hastings, supra, 110 Cal.App.4th at p. 972.) “Undue hardship”
means “an action requiring significant difficulty or expense, when
considered in light of the following factors: [¶] (1) The nature and
cost of the accommodation needed. [¶] (2) The overall financial
resources of the facilities involved in the provision of the
reasonable accommodations, the number of persons employed at
the facility, and the effect on expenses and resources or the
impact otherwise of these accommodations upon the operation of
13 In addressing the question in the verdict form regarding
undue hardship during his closing argument, counsel for the City
stated, “As I mentioned earlier, if everybody who started the
Academy were injured, when they get injured, if they were to all
of a sudden have a claim to a permanent City job elsewhere, it
would certainly cause a hardship. It would mean there would be
scores, if not more, people that would be able to short-circuit the
civil service system [and] get in without tests.” The jury
answered “no” to the verdict questions, “Was the accommodation
requested by [each plaintiff] one that would have created an
undue hardship on the City of Los Angeles?”
50
the facility. [¶] (3) The overall financial resources of the covered
entity, the overall size of the business of a covered entity with
respect to the number of employees, and the number, type, and
location of its facilities. [¶] (4) The type of operations, including
the composition, structure, and functions of the workforce of the
entity. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.” (§ 12926, subd. (u).)
“„Whether a particular accommodation will impose an undue
hardship for a particular employer is determined on a case by
case basis‟” (29 C.F.R. § 1630.15(d) (Appendix: Interpretative
Guidance on Title I of the Americans with Disabilities Act)) and
“is a multi-faceted, fact-intensive inquiry.” (Bryant v. Better
Business Bureau of Greater Maryland, Inc. (D.Md. 1996) 923
F. Supp. 720, 737 [applying 42 U.S.C. § 12111 and 29 C.F.R.
§ 1630.2(p), whose definitions of “undue hardship” mirror those in
FEHA].)
CACI No. 2545, pursuant to which the trial court
instructed the jury on undue hardship, provides that undue
hardship is an affirmative defense that the employer has the
burden to prove. The trial court instructed the jury here that to
succeed on this defense the “City of Los Angeles must prove that
the accommodations would be significantly difficult or expensive
to make.” Among the factors the trial court told the jury to
consider were the nature and cost of the accommodation, the
City‟s ability to pay for it, the impact of the accommodation on
the City‟s operations, the number of City employees and the
relationship of those employees‟ duties to one another, and the
51
administrative and financial relationship of the City‟s facilities to
one another.14
Thus, under California law and the instructions provided to
the jury, an employer must do more than simply assert that it
had economic reasons to reject a plaintiff‟s proposed
reassignment to demonstrate undue hardship. (See Swanson,
supra, 232 Cal.App.4th at p. 968.) An employer must show why
and how asserted economic reasons would affect its ability to
provide a particular accommodation. (Ibid.) Where, as here, an
employer fails to meet its burden of proving undue hardship, the
question on appeal is “„whether the evidence compels a finding in
favor of the appellant as a matter of law.‟” (Sonic Mfg.
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal. App. 4th
456, 465.) Specifically, the question is whether the City‟s
evidence of financial burden was (1) “„“uncontradicted and
unimpeached”‟” and (2) “„“of such a character and weight as to
leave no room for a judicial determination that it was insufficient
to support a finding.”‟” (Dreyer‟s Grand Ice Cream, Inc. v. County
of Kern (2013) 218 Cal. App. 4th 828, 838; accord, Almanor
Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th
761, 769; Wells Fargo Bank, N.A. v. 6354 Figarden General
Partnership (2015) 238 Cal. App. 4th 370, 390; see In re R.V.
(2015) 61 Cal. 4th 181, 201 [where party fails to meet its burden
on an issue in the trial court, “the inquiry on appeal is whether
the weight and character of the evidence . . . was such that the
[trial] court could not reasonably reject it”].) In fact, “[w]here, as
here, the judgment is against the party who has the burden of
proof, it is almost impossible for him to prevail on appeal by
14 The City does not challenge this instruction.
52
arguing the evidence compels a judgment in his favor.” (Bookout
v. State of California ex rel. Dept. of Transportation (2010) 186
Cal. App. 4th 1478, 1486.)
The City has not met its “almost impossible” burden of
showing the evidence compels a finding that the
accommodations—in this case, reassignment to the Recycle
program for an uncertain period of time—would cause undue
hardship. The City explained at trial that it ended the Recycle
program to comply with the two-year rule and to enable the
Department to hire new, healthy recruits. The jury also heard
testimony, however, that the consequences of failing to comply
with the two-year rule were insubstantial because, had the
plaintiffs been able to return to the Academy, the Department
would have allowed them to do so even though their return would
have violated the rule. Moreover, undisputed evidence showed
that other injured recruits had remained in the Recycle program
longer than six months, notwithstanding the Department‟s stated
intent to end policies and practices inconsistent with the two-year
rule.
On the issue of the economic burden of assigning the
plaintiffs to the Recycle program, Francois Gardere,
Commanding Officer of Personnel Division, testified that the City
had implemented a hiring freeze in 2009. Because of the freeze,
the Department was not able “to add any salaries to our account”
without permission from the City Administrative Officer. Officer
Gardere did not state, however, whether the Department ever
sought or was denied such permission. Deputy Chief Jose Perez
also testified that the hiring freeze affected the City‟s ability to
hire new employees into civilian positions, but he did not
comment on the freeze‟s impact on sworn officer positions. With
53
regard to police recruits, Lieutenant Palmer testified that “when
you have 43 or so recruits in [the] Recycle program, that‟s 43
recruit positions that you can‟t hire someone else into. And the
idea is to get the recruits into the Academy, get them through the
six months [of Academy training] and get them out on the street
where they can help public safety.”
While this testimony ostensibly tied the economic cost of
assigning the plaintiffs to the Recycle program to potentially
lower staffing levels, the City offered no evidence to explain why
this would result in “significant difficulty or expense.” (§ 12926,
subd. (u); see Swanson, 232 Cal.App.4th at p. 968 [rejecting the
employer‟s economic burden argument where “the evidence does
not show any reduction in funding required the elimination of
[the plaintiff‟s position] or prevented the [defendant] from
reassigning another [employee] to fill the [position] offered to [the
plaintiff] or the [position] she ultimately received”].) For
example, the City did not offer any evidence to show either that
the expense of hiring additional recruits would have been too
great in relation to the City‟s financial health or that the City
could not have met its public safety needs if the plaintiffs
remained in the Recycle program or if the City could not have
hired additional recruits. (See, e.g., E.E.O.C. v. Amego, Inc. (1st
Cir. 1997) 110 F.3d 135, 148-149 [medical facility demonstrated
undue hardship by introducing evidence of the cost of hiring an
additional employee to cover the duties plaintiff could not
perform and by showing that the resulting staff-to-patient ratio
would violate funding contracts and service plans]; Vande Zande
v. State of Wis. Dept. of Admin. (7th Cir. 1995) 44 F.3d 538, 542
[employer may prove undue hardship by establishing that the
costs of the proposed accommodation are excessive in relation
54
either to its benefits or to the employer‟s financial health or
survival]; cf. Lui, supra, 211 Cal.App.4th at pp. 974-977 [police
department proved that all officers, even those assigned to
administrative duties, must be able-bodied by providing
extensive evidence of the impact on public safety caused by a
reduction in the number of “full duty” officers and the
department‟s inability to hire more full duty officers due to
budget cuts].) The City‟s evidence does not compel a result
contrary to the jury‟s finding that the accommodations requested
by the plaintiffs would not have imposed an undue hardship on
the City.15
D. The Damages Awards for Future Economic Damages
Were Speculative
The City attacks the jury‟s future economic damages
awards as speculative and excessive.16 In particular, the City
argues the damages the jury awarded for future economic losses
were “astonishing” and “patently excessive” because the plaintiffs
were “trainees who had completed only 8 hours to 18 weeks of
training” and the awards assume the plaintiffs would have
15 Because we will affirm a judgment if it is supported by a
verdict on any cause of action (Roby v. McKesson Corp. (2009) 47
Cal. 4th 686, 702; Tavaglione v. Billings (1993) 4 Cal. 4th 1150,
1155; see Carr v. Barnabey‟s Hotel Corp. (1994) 23 Cal. App. 4th
14, 17 [“[w]e will affirm if a single cause of action is supported by
the evidence”]), we do not reach the City‟s argument that
substantial evidence does not support the jury‟s finding the City
failed to engage in the interactive process.
16 The City does not challenge the awards for past economic
damages or the awards for noneconomic damages.
55
passed the Academy, completed their probationary periods,
become career officers, and retired from the Department. We
agree with the City that the damages awards for future economic
losses are speculative.
1. Relevant Proceedings
The trial court properly instructed the jury that future
economic damages include the amount of income, earnings,
salary and wages the plaintiffs would be “reasonably certain to
lose in the future as a result of the injury.” The plaintiffs
introduced evidence of such losses through the testimony of an
expert witness, Karen Smith. For all of the plaintiffs except Lee,
Smith assumed the plaintiffs eventually would have returned to
the Academy, complete their training, and become sworn police
officers. Because Lee apparently was not “medically cleared” to
return to the Academy at the time of trial, Smith assumed he
eventually would have obtained a job with the City (presumably
through a 1014 transfer) as a management analyst.17
17 The record does not definitively state whether Lee could
have returned to the Academy. He testified that he was “cleared
to return to work” some time in 2013, and the City repeatedly
states that Lee and the other plaintiffs were temporarily injured
and had fully recovered from their injuries by the time of trial.
In their respondents‟ brief on appeal, however, the plaintiffs
reiterate that Smith‟s testimony assumed Lee could not have
returned to the Academy. Although we do not reach the question
whether a transfer under City Charter section 1014 was a
reasonable and available accommodation, the City does not
contest the basis for Lee‟s damages award. The City contends
only that the damages awarded were speculative and excessive
56
Based on these assumptions, Smith calculated the present
value of what each plaintiff would have earned had they worked
as police officers (or in the case of Lee, as a management analyst)
for 25-33 years, earning promotions along the way, and then
received retirement income and benefits. Smith subtracted from
these future earnings as mitigation the amounts the plaintiffs
expected to earn in their then-current jobs, which Smith referred
to as “offset earnings.” Lee was not working at the time of the
trial, but Smith assumed he eventually would become a retail
sales clerk. The plaintiffs also introduced into evidence a
“summary of present value of economic losses” Smith had
prepared for each plaintiff.
The City did not introduce any expert testimony on
economic damages. Nor did the City challenge Smith‟s
credentials, object to her testimony, or object to the admission of
any of the summaries of economic losses she had prepared. On
cross-examination, however, Smith admitted her calculations
rested on five key assumptions: that the plaintiffs (with the
exception of Lee) would graduate from the Academy, complete
their probationary periods, “like being police officers,” stay with
the Department until retirement age, and “be enamored enough
with the job” to stay another five years to collect additional
retirement benefits. When asked how she “c[a]me up with these
assumptions,” Smith said, “This is what I do on most of the
cases.” She admitted she did not have a “crystal ball that says
[the plaintiffs are] actually going to work” for the Department, or
at all, for all of the years included in her estimates.
and, with regard to Lee in particular, that the amount Smith
used to calculate his offset was speculative.
57
Collectively, the jury awarded the plaintiffs over $6.5
million in future lost earnings, and the City moved for a new trial
on the basis that the damages award was speculative and
excessive. The trial court denied the motion, noting that Smith‟s
conclusions were admitted into evidence “unchallenged” because
the City did not object that they lacked foundation. The trial
court found the damages award was not even “close to
unreasonable.”
2. Standard of Review and Governing Law
Code of Civil Procedure section 657, subdivision (5),
authorizes the trial court to vacate or modify a verdict or grant a
new trial where the damages are excessive. On appeal from an
order denying a new trial for damages, “[w]e make „“[a]ll
presumptions favor the trial court‟s ruling, which is entitled to
great deference because the trial judge, having been present at
trial, necessarily is more familiar with the evidence and is bound
by the more demanding test of weighing conflicting evidence
rather than our standard of review under the substantial
evidence rule. . . . [W]e do not reassess the credibility of witnesses
or reweigh the evidence. To the contrary, we consider the
evidence in the light most favorable to the judgment, accepting
every reasonable inference and resolving all conflicts in its
favor.‟” [Citations.] „The evidence is insufficient to support a
damage award only when no reasonable interpretation of the
record supports the figure.‟” (Rony v. Costa (2012) 210
Cal. App. 4th 746, 753-754; see Janice H. v. 696 North Robertson,
LLC (2016) 1 Cal.App.5th 586, 602; Mendoza v. City of West
Covina (2012) 206 Cal. App. 4th 702, 720.)
58
“„Whether a plaintiff “is entitled to a particular measure of
damages is a question of law subject to de novo review.”‟”
(Bermudez v. Ciolek (2015) 237 Cal. App. 4th 1311, 1324; accord,
Rony, supra, 210 Cal.App.4th at p. 753.) “„“The amount of
damages, on the other hand, is a fact question . . . [and] an award
of damages will not be disturbed if it is supported by substantial
evidence.”‟” (Bermudez, at p. 1324; accord, Rony, at p. 753.) We
can reverse the trial court‟s ruling “„only on the ground that the
verdict is so large that, at first blush, it shocks the conscience and
suggests passion, prejudice or corruption on the part of the jury.‟”
(Janice H., at p. 602; see Bender v. County of Los Angeles (2013)
217 Cal. App. 4th 968, 986; see also Seffert v. Los Angeles Transit
Lines (1961) 56 Cal. 2d 498, 511 (dis. opn. of Traynor, J.) [“„[t]o say
that a verdict has been influenced by passion or prejudice is but
another way of saying that the verdict exceeds any amount
justified by the evidence,‟” quoting Zibbell v. Southern Pac. Co.
(1911) 160 Cal. 237, 255].)
A damage award must not be “„“speculative, remote,
imaginary, contingent, or merely possible.”‟” (In re Estate of
Kampen (2011) 201 Cal. App. 4th 971, 991-992; Toscano v. Greene
Music (2004) 124 Cal. App. 4th 685, 694; Piscitelli v. Friedenberg
(2001) 87 Cal. App. 4th 953, 989; see Regalado v. Callaghan (2016)
3 Cal.App.5th 582, 602 [“[a]n award of damages must be
predicated on something more than mere possibilities”].) Courts
reviewing damages for the loss of future earnings have held such
damages are recoverable “„where the evidence makes reasonably
certain their occurrence and extent.‟” (Toscano, at p. 694; see
Licudine v. Cedars–Sinai Medical Center (2016) 3 Cal.App.5th
881, 887 [“the jury must fix a plaintiff‟s future earning capacity
based on what it is „reasonably probable‟ she could have
59
earned”].) Indeed, “[d]amages must, in all cases, be reasonable.”
(Civ. Code, § 3359; see Licudine, at p. 891; Bermudez, supra, 237
Cal.App.4th at p. 1328.) Requiring the plaintiff to prove future
economic losses are reasonably certain “ensures that the jury‟s
fixing of damages is not wholly, and thus impermissibly,
speculative.” (Licudine, at p. 895; see Piscitelli, at p. 989 [“it is
fundamental that „damages which are speculative, remote,
imaginary, contingent, or merely possible cannot serve as a legal
basis for recovery‟”].)
Where, as here, a relatively young plaintiff suffers an
injury that prevents him or her from pursuing a specific career,
“courts have generally required some proof that the plaintiff is
far along in his or her training or experience” to justify future
economic losses. (Licudine, supra, 3 Cal.App.5th at p. 896.)
Moreover, in general “„[t]he longer a proposed front pay period,
the more speculative the damages become.‟” (Peyton v. DiMario
(D.C. Cir. 2002) 287 F.3d 1121, 1128; see Chin et al., Cal. Practice
Guide: Employment Litigation (The Rutter Group 2016) ¶ 17:273,
pp. 17-45 to 17-46 [“[f]ront pay awards for lengthy time periods
may be challenged as being inherently speculative”].)
3. The City Did Not Forfeit the Argument That the
Jury‟s Award of Future Economic Damages Is
Speculative
Plaintiffs contend the City‟s failure to object to Smith‟s
testimony at trial forfeited the City‟s argument that her opinion,
without more, does not constitute substantial evidence of the
plaintiffs‟ future economic damages. The plaintiffs cite two lines
of cases in support of their contention, neither of which stands for
the proposition for which the plaintiffs cite it. The plaintiffs first
60
cite three cases holding that a party‟s failure to object to an
expert‟s testimony at trial forfeits the argument on appeal that
the testimony was inadmissible. (See People v. Bolin (1998) 18
Cal. 4th 297, 321 [defendant who failed to object to an expert‟s
qualifications at trial forfeited the argument that expert
testimony was inadmissible because the expert was not
qualified]; In re Estate of Odian (2006) 145 Cal. App. 4th 152, 168
[any objection to the admissibility of expert opinion on appeal
was forfeited by failure to object at trial]; People v. Rodriquez
(1969) 274 Cal. App. 2d 770, 776 [an appellant cannot challenge an
expert‟s qualifications for the first time on appeal].) These
authorities stand only for the proposition that the City has
forfeited the right to appeal the admissibility of Smith‟s
testimony (an argument the City does not make). They do not
preclude the City from arguing Smith‟s opinion had no
evidentiary support.
The plaintiffs also cite nine cases and two volumes of
Witkin for the proposition that an expert‟s opinion “must be
viewed as substantial evidence supporting the jury‟s verdict” if
the opposing party failed to object to the expert‟s testimony at
trial. That is not the law. The authorities cited by plaintiffs,
including People v. Panah (2005) 35 Cal. 4th 395, stand only for
the proposition that expert testimony admitted at trial without
objection is “competent” for purposes of considering on appeal
whether sufficient evidence exists to support a finding. (See id. at
p. 476 [hearsay testimony received without objection “„“takes on
the attributes of competent proof when considered upon the
question of sufficiency of the evidence”‟”]; see also People v. Bailey
(1991) 1 Cal. App. 4th 459, 463 [reviewing court may consider
inadmissible evidence introduced without objection at trial in
61
evaluating the sufficiency of evidence on appeal]; In re Tracy Z.
(1987) 195 Cal. App. 3d 107, 113 [reviewing court may consider
incompetent evidence admitted without objection in support of a
judgment]; Yule v. Miller (1927) 80 Cal. App. 609, 616 [“[e]vidence
technically incompetent admitted without objection must be
given as much weight in the reviewing court in reviewing the
sufficiency of the evidence as if it were competent,” and citing
similar cases]; 3 Witkin Cal. Evidence (5th ed. 2012) Presentation
at Trial, § 405, p. 561 [incompetent evidence, if received without
objection, “will be considered in support of the judgment”]; 9
Witkin Cal. Procedure (5th ed. 2008) Appeal § 369, p. 427
[same].) Competent evidence is not necessarily substantial
evidence.
4. The Record Does Not Support the Jury‟s
Awards for Future Economic Damages
An expert‟s testimony about a plaintiff‟s earning capacity
must be grounded in reasonable assumptions (Licudine, supra, 3
Cal.App.5th at p. 897), not speculative or conjectural data
(Toscano, supra, 124 Cal.App.4th at p. 696). If the expert‟s
opinion is not based on facts otherwise proved or if the opinion
assumes facts contrary to the evidence, “it cannot rise to the
dignity of substantial evidence.” (Toscano, at p. 696; accord, Wise
v. DLA Piper LLP (US) (2013) 220 Cal. App. 4th 1180, 1191-1192;
see Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal. 4th 747, 770 [expert opinion “„may not be based “on
assumptions of fact without evidentiary support”‟”]; Pacific Gas &
Electric Co. v. Zuckerman (1987) 189 Cal. App. 3d 1113, 1135
[“[t]he value of opinion evidence rests not in the conclusion
62
reached but in the factors considered and the reasoning
employed”].)
Although Smith opined on the value of the plaintiffs‟ future
economic damages, she provided or cited to no testimony, other
evidence, or opinion on the likelihood that the plaintiffs would
ever receive future earnings from the Department. (See
Licudine, supra, 3 Cal.App.5th at p. 899 [plaintiff introduced no
evidence “establishing a reasonable probability that she could
have become qualified and fitted to earn a lawyer‟s salary”].)
Indeed, absent from the record is any evidence, direct, statistical,
or even anecdotal, of the likelihood that the plaintiffs would
graduate from the Academy, successfully complete their
probation, and serve as police officers until their retirement more
than 25 years later (or, in the case of Lee, ever become a
management analyst or remain in that career until retirement).
(See ibid. [lack of evidence establishing likelihood that plaintiff
would ever become a lawyer made future economic earnings from
becoming a lawyer unreasonably speculative].) Because we
“cannot ascertain with any certainty how [the plaintiff‟s expert]
reached her assumption[s]” (Toscano, supra, 124 Cal.App.4th at
pp. 696-697) regarding the plaintiffs‟ continued employment with
the Department, the award of future economic losses is
speculative. (See Piscitelli, supra, 87 Cal.App.4th at p. 990
[plaintiff‟s claim for lost commissions was speculative as a matter
of law to the extent it was based on an unsupported assumption
that an investment account would increase two-fold over time].)
Giving the plaintiffs the benefit of every inference we can
draw from the evidence, we acknowledge that each plaintiff
testified that he wanted to be a police officer and would have
accepted another position with the City had the City offered one.
63
Each of the plaintiffs also testified that he would have stayed
with the Department (though not specifically until retirement)
had the Department not constructively or actually terminated
him. The jury could have inferred from this testimony that the
plaintiffs wanted long careers with the Department.
Nevertheless, given their youth, the short amount of time each of
them had spent in the Academy, and the fact that none of them
had worked a day as a sworn police officer, the plaintiffs‟ personal
intentions do not establish with any reasonable certainty that
they would ever have become police officers, let alone remain
with the Department for over 25 years and retire with maximum
benefits. (See Toscano, supra, 124 Cal.App.4th at p. 696
[employee‟s intentions or practices are not relevant to whether he
could expect to remain employed until retirement where
employment was at-will].)
Indeed, it appears highly unusual, though not unheard of,
for a court to award front pay based on a wage differential over
the employee‟s entire working life. (See Horsford v. Board of
Trustees of California State University (2005) 132 Cal. App. 4th
359, 388 [“[o]ccasionally, courts have awarded front pay based
upon a wage differential that will persist over the employee‟s
working life”]; see also Chin et al., Cal. Practice Guide:
Employment Litigation, supra, ¶ 17:235, pp. 17-39 to 17-40.)
Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th
976, disapproved on other grounds by Lakin v. Watkins
Associated Industries (1993) 6 Cal. 4th 644, 665, was one of those
unusual instances. In Bihun the court held that the record
supported an inference that the plaintiff would have stayed
indefinitely with the defendant employer had she not been
terminated unlawfully. The record in Bihun showed the plaintiff
64
had spent eight years with her employer, received nothing but
excellent evaluations, earned her law degree while working for
her employer, chose to stay on the executive track at the company
rather than go into private practice, and would have remained at
the company indefinitely but for the sexual harassment she
experienced. (Bihun, at p. 996.) As the City correctly argues, the
evidence in this record pales in comparison to the type of
evidence in Bihun that supported an inference the plaintiff would
have remained with her employer until she retired had she not
suffered unlawful harassment. (See also Hope v. California
Youth Authority (2005) 134 Cal. App. 4th 577, 594 [affirming
award of future earnings losses until retirement for 40-year-old
employee who worked for the State for six years despite severe or
pervasive harassment].)
The plaintiffs‟ expert “simply assumed” the plaintiffs would
have completed their Academy training and probationary period
and remained police officers for over 25 years, without any
evidence of the likelihood that the plaintiffs would successfully
run the table from the Academy to retirement. (See Toscano,
supra, 124 Cal.App.4th at p. 696.) Given the considerable
evidence describing the rigors of the Academy and the fact of the
plaintiffs‟ past injuries (and in some cases multiple past injuries),
Smith‟s assumptions were wholly conjectural. While we
acknowledge that some reasonable assumptions are necessary to
determine front pay, the plaintiffs here failed to provide critical
factual support for their expert‟s assumptions. (See Peyton,
supra, 287 F.3d at p. 1129 [damages award improperly assumed
the plaintiff would have remained with her original employer for
the rest of her career]; Barbour v. Merrill (D.C. Cir. 1995) 48 F.3d
1270, 1279, cert. dism. (1996) 516 U.S. 1155 [“[t]he plaintiff bears
65
the initial burden of providing the [fact finder] „with the essential
data necessary to calculate a reasonably certain front pay
award‟”].)
“An expert‟s opinion is only as good as the facts on which it
is built.” (Shiffer v. CBS Corp. (2015) 240 Cal. App. 4th 246, 253.)
Here, there were no facts on which to build Smith‟s opinion on
future economic damages. Even giving deference to the trial
court‟s ruling denying the City‟s motion for a new trial and
drawing all inferences in favor of it, the evidence is too
speculative to lend support to the award of the plaintiffs‟ future
lost earnings. (See Toscano, supra, 124 Cal.App.4th at pp. 695-
696.) The City is entitled to a new trial on plaintiffs‟ claim for
future economic damages.18
18 The City does not argue it is entitled to judgment on
plaintiff‟s claim for future economic damages because plaintiffs
failed to meet their burden of proving those damages. (Cf.
Licudine, supra, 3 Cal.App.5th at p. 899 [as a general rule, “[a]
party faced with an adverse result may move for judgment
notwithstanding the verdict when, among other things, the
„verdict‟ is „not supported by the facts,‟” and “when the facts are
insufficient and „[w]hen the [nonmoving party] has had full and
fair opportunity to present [her] case, . . . a judgment for [the
moving party] is required and no new trial is ordinarily
allowed‟”].) To the contrary, the City asks that, in the event we
affirm any part of the judgment on liability, we grant the City a
new trial or reduce the award of damages. The City did not move
for judgment notwithstanding the verdict on damages in the trial
court, thus forfeiting the argument it is entitled to judgment on
the claim for future economic damages. (See Lee v. West Kern
Water District (2016) 5 Cal.App.5th 606, 634; Simplon Ballpark,
LLC v. Scull (2015) 235 Cal. App. 4th 660, 667-669.)
66
DISPOSITION
The judgment is affirmed in part and reversed in part. The
order denying the motion for a new trial is reversed, and the trial
court is directed to enter a new order granting the motion for a
new trial on future economic damages only. The trial court‟s
order awarding plaintiffs their attorneys‟ fees and costs is
vacated. In all other respects, the judgment is affirmed. The
parties are to bear their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
KEENY, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
67