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Atkins v. City of Los Angeles

California Court of Appeals, Second District, Seventh Division

February 14, 2017

RYAN ATKINS et al., Plaintiffs and Respondents
CITY OF LOS ANGELES, Defendant and Appellant.

          Order Filed Date March 13, 2017

         APPEAL from a judgment and postjudgment order of the Superior Court of Los Angeles County, No. BC449616 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.


         The opinion filed February 14, 2017 and is modified as follows:

         1. On page 63, in the first sentence of the first paragraph the word “ever” is deleted, and the words “until retirement” are inserted after Department before the end of the sentence.

         As modified, the sentence reads:

         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 receive future earnings from the Department until retirement.

         2. On page 66, the entire first paragraph including footnote 18 is deleted and replaced with the following two paragraphs:

         “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 that the plaintiffs were entitled to recover future economic damages to retirement. 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 until retirement. (See Toscano, supra, 124 Cal.App.4th at pp. 695-696.)

         The City does not genuinely dispute that the plaintiffs are entitled to a reasonable, non-speculative award of future economic damages. The City's argument is that (assuming liability) the plaintiffs are not entitled to recover future lost earnings until retirement, not that they are not entitled to recover any future lost earnings at all. Although there is evidence in the record from which the jury could have calculated a reasonable amount of future economic damages, it is not our role to say what that amount should be. “‘The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.'” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [remanding for a new trial limited to the amount of punitive damages because the Court of Appeal would not “substitute [its] own assessment of the appropriate amount of punitive damages for that of a jury (or a judge on a new trial motion)”]. We therefore reverse the trial court's award of future economic damages and remand for a new trial on this limited issue. (See Code Civ. Proc., § 657, subd. (5); cf. Piscitelli, supra, 87 Cal.App.4th at p. 990 [reversing the judgment without granting a new trial on damages because the reviewing court could distinguish between the reasonable and unreasonable portions of the jury's award for future economic damages].)

         This order does not change the judgment. The City's petition for rehearing is denied.

          SEGAL, J.


         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 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 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.


         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.

         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 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 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.

         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 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 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 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 “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” 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 said Fein also told him that if he ...

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