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Bruce Furtado v. State Personnel Board et al

January 7, 2013

BRUCE FURTADO, PLAINTIFF AND APPELLANT,
v.
STATE PERSONNEL BOARD ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey Bruce Jones, Judge. (Super. Ct. No. ECU05834)

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

Affirmed.

I. INTRODUCTION

Bruce Furtado appeals from a judgment denying his petition for a writ of mandate directing the California State Personnel Board (SPB) to set aside its order sustaining the decision of California's Department of Corrections and Rehabilitation (the Department) to medically demote Furtado to a non-peace officer position, and not to place Furtado in a newly-created administrative correctional lieutenant peace officer position. The trial court concluded that the law and evidence supported the SPB's decision that the Department had reasonably determined that Furtado was unable to perform the essential functions of his correctional lieutenant position even with reasonable accommodation. The court further concluded that the Department acted reasonably in demoting Furtado to an available non-peace officer position for which he was qualified and could perform the essential duties.

We affirm the trial court's judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. Furtado's background with the Department and his injury

Furtado began working for the Department as a correctional officer in 1981. The Department promoted him to correctional sergeant in 1988, and to correctional lieutenant in 1994. As a correctional lieutenant, Furtado was classified as a peace officer, and was required to certify annually in the use of a baton.

In December 1997, Furtado was working as a correctional lieutenant at Centinela State Prison. That month, he was involved in a serious automobile accident while he was off duty. Furtado was in the hospital for 30 days and took eight months off from work to recuperate. Furtado received serious injuries to his left shoulder, forearm, elbow and hand in the accident. The injuries to the nerves in his left upper arm and his hand resulted in an overall loss of grip strength, loss of range of motion, and difficulty in forming a fist, and caused permanent decreased functioning in his left arm and elbow.

Furtado returned to work in September 1998. At that time, Furtado's physician, Glenn Rankin, M.D., submitted a letter stating that as a result of Furtado's injuries, he could no longer perform the duties of a correctional lieutenant. In June 1999, the Department medically demoted Furtado to a non-peace officer position of Staff Services Analyst.

In December 2002, the Department reinstated Furtado to the position of correctional lieutenant after he obtained a medical release from his physician. The Department initially assigned Furtado to a facility within the prison. However, after a few days, the Department reassigned Furtado to perform the same job functions that he had been performing as a non-peace officer Staff Services Analyst because the institution staff felt that Furtado had not demonstrated that he could meet the physical qualifications of a peace officer.

After Furtado was reassigned, he was tested one-on-one to determine if he could qualify with a side handle baton. Department peace officers are typically tested on their weapon proficiency on a one-on-one basis after they return from a medical leave of absence. The instructor who tested Furtado concluded that Furtado had failed multiple aspects of the test. Specifically, Furtado had "no control," was "unable to lift [the] baton above [his] head," and was "unable to lift [his] arm." The instructor gave Furtado an overall rating of "Fail," and noted that Furtado had "very little control over [the] baton when both hands [were] required." In a December 2002 memorandum to the chief deputy warden of Centinela State Prison, the instructor explained that Furtado had failed his recertification with the baton because Furtado "was unable to lift his left arm above his head [as required by some of the moves] due to physical limitations," and he could not maintain adequate control of the baton with both hands as was required by certain moves.

Approximately six months later, in June 2003, the Department provided Furtado with eight hours of side handle baton training. After he received this training, Furtado was tested by a different instructor. The second instructor concluded that Furtado had failed this baton test, primarily as a result of problems with his left arm and hand. The instructor's notes demonstrated that Furtado was unable to grip the baton with his left hand and that he had no power in that hand. In a memorandum to the chief deputy warden of the prison, the instructor stated that Furtado "had a great deal of difficulty maintaining control of the Side Handle Baton whenever the techniques required the support of the weak/support hand (his left hand)." Furtado "appeared to be physically unable to complete a third of the required techniques to pass the class. He is unable to grip (wrap his fingers around the baton) with his left hand." The instructor concluded, "[I]t is clear that he is physically unable to properly perform the techniques due to his limited mobility in his left hand, arm and shoulder."

In August 2003, before the Department had taken any action with respect to Furtado's failure to certify with the side handle baton, Furtado submitted a written request for accommodation. In his request for accommodation, Furtado stated that his physical limitations were permanent and asked that he be relieved of the requirement that he certify with the baton. Furtado also indicated that he would be amenable to being "assigned to [an] administrative position if necessary." Furtado was hoping that he would be permitted to take on "an administrative position that doesn't require the use of a baton to do some kind of lieutenant administrative duties."

Upon receiving Furtado's request for accommodation, Marvalee Brooks, Centinela's return-to-work coordinator, asked Furtado to provide a medical evaluation from his treating physician detailing his physical limitations. Dr. Rankin submitted a letter on June 17, 2003, in which he stated that Furtado's injury was permanent, that he did not anticipate that Furtado's injury would improve, and that there was no equipment that could be obtained that would assist Furtado in using the side handle baton. Dr. Rankin further stated that, as a result of the injury, Furtado had significant decreased functioning in his left arm, including his left elbow, and he had "overall loss of grip and pince strength, as well as difficulty forming a complete fist and ranging his arm through space." Dr. Rankin believed that Furtado "would have difficulty using the side handle baton . . . with the left hand."

After reviewing Dr. Rankin's letter, Brooks believed that Furtado would not be able to qualify with the side handle baton, and that there was no accommodation that would allow him to qualify with the side handle baton. Brooks further believed that because being able to meet the Department's qualification requirements with a baton was necessary in order for an employee to remain in the position of a peace officer, it would impossible for Furtado to remain in the correctional lieutenant classification.

The Department scheduled Furtado for a "fitness-for-duty" evaluation, to be completed by William Davidson, M.D., an orthopedic surgeon who specializes in surgery of the hand and upper extremities.*fn1 Dr. Davidson conducted an examination of Furtado on January 19, 2004, during which he compared the injured and uninjured upper extremities and tested Furtado's range of motion. Dr. Davidson noted that Furtado had a limited range of motion in his left shoulder, left elbow, and left wrist. For example, Furtado only had 45 degrees of motion in his left shoulder, as compared with 180 degrees of motion in his right shoulder. Furtado could not lift his left arm over his head and could lift it only halfway to the horizontal position.

The examination also revealed that Furtado was substantially limited in how far he could extend his left elbow. Normal elbow extension is 180 degrees. Furtado "could not extend or reach fully straightening [his] elbow, but could only reach to within 70 degrees." This meant that Furtado's left elbow extension was closer to a right angle than to being fully extended. In addition, Furtado's left wrist was severely compromised.

Furtado had only five degrees of motion in his wrist, while an average extension would be 45 degrees. Furtado could rotate his wrist only five degrees in a clockwise motion, and was unable to turn it at all in a counter-clockwise motion. An uninjured person can normally rotate both clockwise and counter-clockwise 90 degrees.

Dr. Davidson's examination revealed that Furtado cannot make a fist with his left hand. With his right hand, Furtado's grip strength was 100 pounds, which is average for an adult man. Usually a person's weak side grip strength is approximately 10 percent less than his or her dominant side grip strength. However, Furtado's grip strength in his left hand was approximately 20 pounds, or about 80 percent less than his dominant hand grip strength.

Dr. Davidson was unaware of any equipment that would assist Furtado in increasing his range of motion or increasing his grip strength.

Based on this examination, Dr. Davidson concluded that Furtado was severely limited due to his injury. The limitations were permanent and rendered Furtado unable to perform a number of the duties required of correctional lieutenants. For example, Dr. Davidson was of the opinion that Furtado was impaired in his ability to disarm, subdue, or apply restraints to an inmate because those activities would require the use of both hands to grasp, hold, twist, and possibly wrest a weapon from an inmate. Dr. Davidson explained, "[W]ithout the ability of both the dominant and weak sided extremity functioning normally, there would be a profound compromise in subduing and disarming such an individual." For these reasons, Furtado also would be "profoundly compromised" in defending himself against an armed inmate. Furtado's limitations in reaching overhead and moving his left arm also would limit his ability to perform cell or body searches.

Dr. Davidson also concluded that Furtado was incapable of properly using a side handle baton, as is required of all peace officers, including correctional lieutenants. Furtado could not reach overhead, manipulate the baton, or even fully grasp the baton.

Dr. Davidson's ultimate conclusion was that Furtado "could not perform many of those functions that were listed under the essential functions of a correctional lieutenant, or those functions listed under the physical requirements in the job analysis." In Dr. Davidson's opinion, there was no way to accommodate Furtado's physical limitations to allow him to complete those functions or meet those requirements, and Furtado's health and safety would be at risk due to those limitations if he were to remain in the position of correctional lieutenant.

On January 19, 2004, Dr. Davidson sent a written report to Brooks. The report detailed the results of Dr. Davidson's examination of Furtado, including his conclusion that Furtado's physical limitations would not allow him to fully use the baton or reach overhead, and his conclusion that the weakness in Furtado's left hand would compromise Furtado's ability to perform retention and escape techniques.

The following day, Furtado submitted a one-page form from his personal physician regarding work restrictions on which the following was written: "Ok to resume full duty. No restrictions, patient can be considered permanent and stationary."

On February 18, 2004, Dr. Davidson submitted a supplemental report regarding Furtado's limitations. In this supplemental report, Dr. Davidson reiterated his opinion that due to Furtado's physical limitations, Furtado was impaired in his ability to disarm, subdue, and apply restraints to an inmate, and that he would be "compromised in his ability to defend himself against an inmate armed with a weapon."

Based on Dr. Davidson's evaluation and the fact that Furtado had failed two side handle baton tests, the Department determined that Furtado was unable to perform the essential functions of the correctional lieutenant position. Personnel manager Shantle Jones told Centinela management that in her view, Furtado's failure to qualify with the side handle baton meant that he could not qualify to be a peace officer. Patrick Cancilla, the Department's manager in charge of reasonable accommodation requests, shared this opinion. Cancilla reviewed Dr. Davidson's report and concluded that Furtado was unable to perform the essential functions of the correctional lieutenant position. Cancilla also believed that the Department could not waive the essential functions of the position, and that if it did so, it would be violating Government Code*fn2 section 1031, subdivision (f), which requires all public employees classified as peace officers to be found free of any physical condition that might adversely affect the exercise of peace officer powers.

Brooks briefed Centinela warden George Giurbino on Furtado's condition, and Giurbino reviewed Cancilla's memorandum regarding Dr. Davidson's conclusions about Furtado's fitness for duty.

The Department denied Furtado's request that he be allowed to work as an administrative correctional lieutenant. It determined that Furtado's request was actually a request that the Department waive one or more essential functions of the correctional lieutenant position. Brooks explained the Department's decision to Furtado in a March 27, 2004 letter:

"The basis for the denial is that waiving essential functions of a job is not a reasonable accommodation, additionally, the Department of Corrections would be in violation of Government Code Section 1031[, subdivision] (f) that reads as follows: 'Each class of public officers or employees declared by law to be peace officers shall meet all of the following standards: Be found to [be] free from any physical, emotional, or mental condition which might adversely affect the exercise of the powers of a peace officer.' "

The Department continued to look for a way to place Furtado in another position in which his disability could be accommodated. The Department ultimately determined that it would have to medically demote Furtado and place him in a different position. The Department engaged in an interactive process with Furtado and offered him other positions in the Department.

Furtado was hoping to obtain a correctional counselor position. However, he did not meet the requirement of 60 semester units of college for the position. In addition, a correctional counselor is also a peace officer position, so Furtado would have had to meet the same physical requirements as for the correctional lieutenant position.

Brooks sent job opportunity bulletins to Furtado until he told her to stop sending them to him because he had access to them on his own. Furtado applied for two lieutenant positions at fire camps. Furtado believed that he had been given a full and fair opportunity to interview for those positions despite the fact that he was not selected to fill either job opening.

In March 2004, Furtado wrote to Brooks saying that he was prepared "to accept a reasonable offer as an Associate Government Program Analyst." Brooks looked for Associate Government Program Analyst positions in the area and forwarded the job opportunity bulletins to Furtado so that he could apply.

Furtado accepted an Associate Government Program Analyst position at the California Institute for Men. The position was one of the highest paying non-peace officer positions available at the Department. After Furtado accepted this position, on November 20, 2004, the Department medically demoted him to the Associate Government Program Analyst ...


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