Atkins v. City of Los Angeles

By Mitch Wrosch

Plaintiffs were six recruit police officers hired by the City of Los Angeles between 2008 and 2009. Each of them entered the Academy shortly after their hire. Upon completion of the Academy’s six-month training course, the recruits would have started a 12-month field probationary period as police officers. But all six plaintiffs had sustained injuries during their training, and City doctors restricted their activities in various ways. Plaintiffs were placed in the “Recycle” program, which placed them in desk jobs while they recuperated.

While Plaintiffs were recuperating in the Recycle program, the program was revised and a six-month limit was imposed on how long a recruit could stay in the program. Plaintiffs were notified that they had to return to the Academy or would be terminated. They could not obtain the requisite clearance, however, and lost their jobs. They then brought suit under the Fair Employment and Housing Act (“FEHA”), asserting disability discrimination, failure to engage in the interactive process, and failure to provide a reasonable accommodation.  Plaintiffs prevailed at trial to the tune of over $12,000,000 in damages.

The City appealed on numerous grounds, including that Plaintiffs could not perform the essential functions of their positions even with a reasonable accommodation. It also argued that it was not required under the FEHA to make their temporary light duty positions permanent.

The FEHA imposes on employers the duty to reasonably accommodate their employees’ physical disabilities. 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.” 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.

Here, the Court of Appeal held that the City 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 their disabilities became permanent. The change to the Recycle program occurred while Plaintiffs had entered it. Because of this, the Court determined the City was not allowed to treat these particular recruits differently from those who were inured prior to the change in policy. The Court acknowledged that the City had legitimate reasons for ending the Recycle program, and could do so going forward, but that having created the Recycle program and having 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.

Finally, the Court held that the City had not met its burden of showing that a reassignment of the six plaintiffs to the Recycle program for a period of longer than six months would cause undue hardship. The Court noted that while the City argued that there would be economic hardships, which included a hiring freeze of new recruits, the City did not show that it would have hired new recruits but could not do so because of this.

An important take away from this case is that, as noted by the Court, a city can change its program, but cannot retroactively apply it to persons who are already participating in a program under certain guidelines or expectations. Any changes in policy, such as the City of L.A.’s change to the LAPD cadet Recycle program, should be prospective and not retrospective.

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