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Kenneth Lui v. City and County of San

December 11, 2012

[5]     KENNETH LUI, PLAINTIFF AND APPELLANT,
v.
CITY AND COUNTY OF SAN FRANCISCO, DEFENDANT AND RESPONDENT.



[6]     Superior Court of the City and County of San Francisco, No. CGC-08-475172, Curtis E. A. Karnow, Jr. (San Francisco City and County Super. Ct. No. CGC-08-475172)

[8]     The opinion of the court was delivered by: Simons, J.

[9]      CERTIFIED FOR PARTIAL PUBLICATION*fn1

[10]     Following a court trial, the trial court entered judgment in favor of defendant and respondent City and County of San Francisco (defendant) on causes of action brought by plaintiff and appellant Kenneth Lui (plaintiff) under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).*fn2 Plaintiff, who had suffered a major heart attack, retired from his position as a police officer in the San Francisco Police Department (Department),*fn3 after the Department informed him there were no administrative positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. On appeal, plaintiff contends, among other things, the trial court erred in finding that strenuous duties--such as making forcible arrests and chasing fleeing suspects--are essential functions of the administrative positions he sought within the meaning of the FEHA. We affirm, concluding the evidence supports the trial court's finding that, even though officers in administrative positions are not frequently required to engage in such activities, the strenuous duties are essential functions of the positions because the Department has a legitimate need to be able to deploy officers in those positions in the event of emergencies and other mass mobilizations. On that ground, we reject plaintiff's discrimination and failure to accommodate claims under the FEHA. We also reject plaintiff's claim that defendant failed to engage in the interactive process mandated by the FEHA to attempt to determine a reasonable accommodation.

[11]     BACKGROUND*fn4

[12]     Plaintiff was hired by the Department as a police officer in 1981. On December 5, 2005, he suffered a heart attack and had five stents inserted. He was diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease. Following his heart attack, plaintiff took 11 months disability leave at full pay. On November 1, 2006, plaintiff returned to work in a 365-day temporary modified duty (TMD) assignment performing light-duty work in the records room.

[13]     Plaintiff's TMD assignment was pursuant to Department General Order (DGO) 11.12. DGO 11.12 was implemented in March 2004, following negotiations with the San Francisco Police Officers' Association (POA). DGO 11.12 eliminated permanent light-duty assignments for officers injured after March 2004 and limited TMD assignments to one year. A TMD assignment is an assignment that "allows sworn members who have a temporary illness or injury to continue to serve in the Department when they are unable to perform the essential functions of their position."*fn5 Under DGO 11.12, at the end of the 365-day TMD period, an injured officer can return to full duty; request a disability accommodation (which may include a citywide job search under defendant's disability transfer policy); seek a disability retirement; seek an unpaid leave of absence; or take sick or family medical leave.

[14]     If the injured officer returns to full duty at the end of the TMD period, he must be able to perform the essential functions of the full duty police officer position, including physically strenuous tasks, even if assigned to an administrative position. Those essential functions are described in the Department's "Sworn Members Essential Job Functions" list (EJF List). The list is comprised of 11 groupings of duties, some of which include physically strenuous tasks, such as making forcible arrests, pursuing fleeing suspects, and responding to emergency situations.

[15]     Prior to the March 2004 implementation of DGO 11.12, the Department assigned disabled officers to permanent light-duty assignments. When an officer is in a light-duty assignment, the officer is unavailable for deployment in response to emergencies. In 1983, 15 officers were in permanent light-duty assignments; by 2003, there were 210 officers in such assignments. That was approximately 10 percent of the Department's sworn officers. In adopting DGO 11.12, the Department sought to decrease the number of sworn officers in permanent light-duty positions. After adoption of DGO 11.12, all of the officers in permanent light-duty positions were evaluated for their ability to return to full duty. Pursuant to an agreement with the POA, officers accommodated in light-duty positions prior to March 2004 were "grandfathered in" and permitted to remain in those positions if they were still unable to return to full duty. The personnel sergeant in the Department's medical liaison unit testified that "a majority" of the accommodated officers stayed in the same positions, but a "subset" of officers left the Department or returned to full duty. From August 2003 to September 2010, the number of officers in permanent light-duty assignments declined from 210 to 45.

[16]     In July 2007, Sergeant Michael Sullivan, the Department's ADA*fn6 coordinator during the relevant period, sent plaintiff a "Reasonable Accommodation Information and 90-Day Notice" confirming that plaintiff's TMD position would end on October 31, 2007. Sullivan enclosed a citywide reasonable accommodation request form, but plaintiff never filled out the form. At that time, plaintiff indicated to Sullivan that he felt he would be able to return to full duty. However, in August 2007, the cardiologist treating plaintiff, Dr. William Raskoff, stated in a note to the Department, "Mr. Lui may return to full duty as a police officer. However, because he has coronary artery heart disease, his responsibilities should not include physically strenuous work." Sullivan told plaintiff that he could not return to full duty with those restrictions.*fn7

[17]     On September 4, 2007, Dr. Raskoff provided a second note stating, "Mr. Lui may return to full duty as a police officer. However, because he has coronary artery disease, he should avoid physically strenuous work and minimize physical contact. He should self-monitor his activities." Sullivan told plaintiff that he had to get a less restrictive medical release if he wanted to return to full duty. Plaintiff told Sullivan that Dr. Raskoff told him that, if he physically struggled with a suspect, "it could cost [plaintiff] his life." Sullivan told plaintiff there were no vacant sworn police officer positions consistent with his medical restrictions.

[18]     On September 19, 2007, Sullivan sent plaintiff information about the possibility of conducting a search for nonsworn officer positions in the Department and citywide. Plaintiff was not interested in any position other than as a sworn officer due to his desire to maximize his pension.

[19]     On September 20, 2007, Sullivan wrote to Dr. Raskoff, informing him that "[f]ull duty police officers are often called upon to perform physically strenuous work" and asking him to "please clarify if [plaintiff] has the ability to perform the duties of a police officer." Dr. Raskoff responded that, "My opinion remains that because of [plaintiff's] coronary heart disease he should not participate in work requiring strenuous physical activity." On October 22, Dr. Raskoff faxed Sullivan a detailed medical consultation note from February, stating among other things that plaintiff "believes that he would not be able to perform th[e] work [of a patrol officer in an automobile,] which occasionally requires strenuous physical activity"; "feels that his symptoms that include exertional dyspnea and palpitations will limit him from being able to perform fully"; and "feels that he is capable of continuing to [work light duty]."

[20]     Shortly before plaintiff's TMD assignment expired, Sullivan informed him of a vacant assignment, language liaison, consistent with his restrictions. The position was created to improve the Department's relations with limited-English speakers in the community. Then Chief of Police Heather Fong waived for that position the requirement that the officer assigned be able to perform the duties in the EJF List. Plaintiff applied and was interviewed for the job, but another officer in a light-duty assignment was given the position.

[21]     On November 8, 2007, plaintiff's duty evaluation committee meeting took place. Plaintiff was offered the option of participating in a 60-day citywide job search to identify vacant positions that were not sworn police officer positions. He rejected that option because of the effect it would have on his police pension. Plaintiff opted to retire and to apply for an industrial disability retirement, which the Department agreed to support. His official retirement date was April 25, 2008.

[22]     The Present Lawsuit

[23]     In May 2008, plaintiff filed a lawsuit alleging five causes of action against defendant, including discrimination in violation of the FEHA; failure to accommodate in violation of the FEHA; failure to prevent discrimination in violation of the FEHA; retaliation in violation of the FEHA; and refusal to engage in the good faith accommodation process required by the FEHA. In April 2010, the trial court dismissed the retaliation claim pursuant to defendant's motion for summary adjudication. Following a court trial, the trial court issued a statement of decision and a subsequent amended statement of decision, ruling in favor of defendant on the remaining four claims. In March 2011, the court entered judgment in favor of defendant. This appeal followed.

[24]     DISCUSSION

[25]     As will be explained below, the key issue on appeal is whether the record supports the trial court's finding that the duties in the EJF List are essential functions of the administrative positions sought by plaintiff. In particular, the court found that, although those duties are more typically performed by patrol officers, the duties are also essential functions of the Department's administrative positions because the Department has a legitimate need to be able to deploy officers in administrative positions in the event of emergencies and other mass mobilizations. Because plaintiff has not demonstrated the court's finding is unsupported by the record or is contrary to the FEHA, we affirm the judgment in favor of defendant.

[26]     I. Standard of Review

[27]     Because plaintiff challenges the sufficiency of the evidence supporting the trial court's decision, we apply the substantial evidence standard of review. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) "Substantial evidence means evidence which is of ponderable legal significance--evidence which is reasonable in nature, credible and of solid value. [Citation.]" (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) "In general, in reviewing a judgment based upon a statement of decision following a bench trial, 'any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]' [Citation.]" (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) "We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (Id. at p. 76.) The testimony of a single witness may be sufficient to constitute substantial evidence. (In re Marriage of Mix (1975) 14 ...


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