Metropolitan News-Enterprise


Thursday, January 26, 2006


Page 1


Court Rules Employer May Discharge Worker, or Force Retirement, When Disability Becomes Permanent


By a MetNews Staff Writer


An employer may discharge, or force the retirement of, an employee who was assigned to light duty due to a temporary disability that has become permanent, the Court of Appeal for this district ruled yesterday.

Applying federal case law to a claim under the Fair Employment and Housing Act, Div. Seven agreed with Los Angeles Superior Court Judge David Minning that the City of Burbank acted within the law in forcing police officer Mark Raine to retire.

Raine was a Burbank officer from 1981 to 2002. After 14 years of service on uniformed patrol, he was assigned as a school resource officer, which also includes patrol duties, but a week after taking up that assignment, he suffered a torn meniscus while on duty that limited his physical abilities and resulted in his assignment to a headquarters desk job.

In 2002, his doctor advised that his injury was permanent and that he would never be able to return to patrol. After engaging in the “interactive process” of consulting Raine and his immediate supervisor about his future with the department, it was determined that there was no available position for an officer with Raine’s disabilities and he was placed on involuntarily retired status.

In moving for summary judgment, the department noted that its desk is usually manned by civilian technicians, who receive less in pay and benefits than sworn officers. Officers are only assigned to the desk, the department said, as a form of light duty during temporary disability.

It also noted that it had accommodated Raine’s disability for six years, including two years that he was off work completely in order to undergo and recover from various medical procedures. The only way that Raine could continue to work at the desk once his injuries became permanent, the department said, would be for him to leave the officer’s position, give up his retirement benefits, and become a civilian technician.

City officials and the president of Raine’s union declared that there were no available positions that he could fill. Raine said that he did not want to give up his retirement benefits to take a civilian job and that he wished to be considered for assignment to the police laboratory, the evidence room, or a detective’s position, but the city said he was not qualified for any of those jobs.

Minning ruled that Raine was in effect asking the city to create a new position for him and that it was not required to do so under FEHA. He also rejected claims of retaliation and age discrimination and granted summary judgment.

Presiding Justice Dennis Perluss, writing for the Court of Appeal, said the trial judge was correct.

Noting that Raine did not offer evidence that he was qualified for any of the alternative positions he asked to be considered for, Perluss wrote:

“Like the [Americans With Disabilities Act], FEHA does not require the employer to create a new position to accommodate an employee, at least when the employer does not regularly offer such assistance to disabled employees....Yet that is exactly what Raine seeks ... to make his temporary assignment (albeit a long-term temporary assignment) permanent:”

The burden, Perluss said, was not on the city to show that it would be a hardship to grant Raine a permanent assignment to the desk, but rather on Raine to show that requiring the city to give him such an assignment was reasonable, which he failed to do.

Attorneys on appeal were Carney R. Shegerian and Donald Conway of Shegerian & Associates for the plaintiff and Senior Assistant City Attorney Carol A. Humiston for the city.

The case is Raine v. City of Burbank, 06 S.O.S. 329.


Copyright 2006, Metropolitan News Company