(Los Angeles County Super. Ct. No. BC311647) APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. Hogue, Judge.
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Defendant and appellant the City of Los Angeles (defendant or City) appeals from a judgment of $1,571,500 in favor of plaintiff and respondent Rory Cuiellette (plaintiff), a Los Angeles Police Department (LAPD) officer, on his claims of disability discrimination and failure to accommodate a disability under the California Fair Employment and Housing Act, Government Code section 12900, et seq. (FEHA).*fn1 On appeal, defendant contends that substantial evidence does not support the trial court's liability determination because the evidence showed that plaintiff was unable to perform the essential duties of a police officer with or without a reasonable accommodation. Even if defendant could not perform all of the essential functions of a police officer, he could perform the essential functions of a position into which he had been placed by the LAPD as a reasonable accommodation in accordance with its then existing practice. Accordingly, we hold that substantial evidence supports the trial court's determination that defendant is liable for a FEHA violation, and therefore affirm the judgment.
This matter is before us for the third time. In the first appeal, concerning defendant's action for disability discrimination under section 12940, subdivision (a) and wrongful termination, we reversed a summary judgment in defendant's favor, holding that plaintiff was not judicially estopped, as a matter of law, from pursuing his FEHA claim based on a position taken in a prior workers' compensation proceeding, and that the 100 percent total permanent disability rating plaintiff received in the workers' compensation proceeding was not, as a matter of law, a legitimate, nondiscriminatory reason for defendant's adverse employment action. In the second appeal, following a $1,571,500 jury verdict in plaintiff's favor on plaintiff's claim of disability discrimination, we held that the trial court erred in failing to instruct the jury that plaintiff had to prove that he was able to perform the essential duties of a police officer with or without a reasonable accommodation. We did not consider what such essential duties were or the requirements of reasonable accommodation. Because defendant's challenge in the second appeal concerned the issue of liability and not damages, we held that retrial would be limited to the issue of liability, including whether plaintiff was able to perform the essential duties of a police officer with or without reasonable accommodation.
Prior to retrial, plaintiff filed a first amended complaint in which he retained his cause of action for disability discrimination (§ 12940, subd. (a)), added a cause of action for failure to accommodate a disability (§ 12940, subd. (m)), and omitted his cause of action for wrongful termination. Defendant filed an answer to the amended complaint. The parties tried the liability issues to the trial court.
The trial court's statement of decision sets forth the relevant facts, and the City does not challenge on appeal the trial court's findings of the underlying facts. Accordingly, we quote from the trial court's statement of decision at length as follows:
"The case arises out of plaintiff Rory Cuillette's [sic] employment with the City of Los Angeles as a peace officer. After several years on the job, Plaintiff was injured and placed on disability leave. After his workers compensation claim resolved with a finding of 100% disability, the City accepted his request to return to work in May 2003. He worked less than five days before the City realized that he was '100% disabled' and, on that basis, sent him home."
"In the Spring of 2003, after an extended disability leave, Plaintiff contacted one of his former colleagues, Detective Bokatich, to express his interest in returning to LAPD to work in the fugitive warrants unit. Detective Bokatich asked him to provide a doctor's note. At Plaintiff's request, his treating physician, Dr. Burstein, sent the City a note authorizing Plaintiff to perform 'permanent light duty--administrative work only.' The note did not list or specify any particular restrictions on Plaintiff's activities.
"There was circumstantial evidence that this letter was satisfactory to the City because Plaintiff reported to work on May 27, 2003. The City assigned him to the 'court' or 'renditions' desk in the fugitive warrants unit [court desk position], a purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse to deliver papers. In his several days in the position, Plaintiff went to weapons of mass destruction training for a day, engaging in computer training and testing, and performing regular duties on the court desk, without incident. On June 3, 2003, however, his supervisor, Capt. Lindsay, informed him that the City could not allow him to work because he was '100% disabled.'
"At that time, 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. Lt. Lutz provided persuasive testimony that during his 12 years as the Officer in Charge of the Medical Liaison unit (1991-2002), his marching orders were to accommodate disabled officers by providing them with 'light duty' assignments. During his tenure, the City accommodated hundreds of disabled officers [by] placing them in assignments that did not require any arrests, field work, or dangerous driving. He specifically recalled assigning officers to purely administrative assignments in the drug testing and fugitive warrant units.
"Similarly, Detective Bokatich testified that he helped reassign as many as 25 disabled officers who contacted him about coming [sic] working in the fugitive warrant unit, many of whom were already drawing workers compensation benefits. Bokatich admitted that although a civilian could be trained to perform the duties on the rendition or court desk, the City routinely placed sworn officers in these positions.
"Although the 'light duty' policy remained in effect until [LAPD] Chief Bratton put an end to it, long after the events giving rise to this case, the City discussed changing the policy from time to time. Various supervisors drafted documents defining the essential functions of a sworn peace officer. Consistent with the State of California's Peace Officer Standards and Training (Penal Code section 13510 et seq.), these drafts identified, as essential duties, many stressful and strenuous tasks, such as making ...