Metropolitan News-Enterprise


Monday, August 20, 2001


Page 5


Ninth Circuit Says City Must Accommodate Disabled Police Officers


From Staff and Wire Service Reports


A San Jose city policy limiting disabled police officers to specific duties, without giving individuals an opportunity to show that they are able to perform more intensive tasks, violates the Americans With Disabilities Act, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel reinstated two actions by six officers who claim they were relegated to “unsatisfactory jobs” in which they have “little or no possibility for promotion.”  The officers must be given a chance to prove at trial that they are capable of performing other tasks, the court said. 

The six are challenging a provision in an agreement between the department and the police union, under which 30 positions have been designated “modified duty” and are the only jobs available to disabled officers.

The union was also sued, but the plaintiffs did not appeal the district judge’s ruling that the dispute between the officers and their bargaining representative had to be resolved by arbitration.

Some officers claimed they made coffee, ran errands or worked in office space that also functioned as a supply room. Able-bodied officers harassed them, pushed them around and called them names like “lame,” “faker” or “whiner,” they allege.

The disabled officers said they worked the worst shifts and were given the least desirable days off. They also were denied promotional opportunities, according to the suit.

U.S. District Judge William A. Ingram of the Northern District of California granted the city’s motion for summary judgment, accepting the city’s argument that because they cannot make forcible arrests, disabled officers are only fit for modified duty as a matter of law.

But in his opinion for the appeals court, Judge Stephen Reinhardt called the city’s argument “entirely unpersuasive.”

He cited testimony from past and present officers, including a former chief of the department, that officers who cannot make arrests due to disability can still serve as fraud investigators, administrative assistants, or recruiters, or as background or internal affairs investigators.

Under the ADA, the judge explained, a disabled individual is considered “qualified” for a job if he or she can perform its “essential function[s].” For a function to be essential, Reinhardt added, it must be a “fundamental” aspect of the job.

“[The ADA] requires every type of employer find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens,” Reinhardt wrote. “The City of San Jose’s police department must participate in this process, as long as they can do so in a manner that will not compromise public safety.”

The plaintiffs suffered neck and back injuries while on duty, said Frank Jelinch, lawyer for four of the officers. Only one remains on the force; all are seeking unspecified damages.

“They were really treated as second-class citizens and called names. They had to live in that environment. It took exceptional courage to come forward and complain,” Jelinch said. “They say, ‘Now you’ve been injured so you’re not of the same value to us as you were before.”’

The department’s lawyer said he would likely go to trial rather than ask the court for a rehearing.

“Our position is that we have accommodated every officer who cannot work patrol ... in meaningful positions,” Clifford Greenberg said.. “We take great issue with the court’s saying it’s undesirable.”

 The case is Cripe v. City of San Jose, 99-15253.


Copyright 2001, Metropolitan News Company