Metropolitan News-Enterprise


Wednesday, April 8, 2009


Page 3


Court of Appeal Orders New Trial in Suit by Disabled LAPD Officer




An erroneous jury instruction requires a new trial on liability in the case of a Los Angeles police officer who sued for disability discrimination, the Court of Appeal for this district ruled yesterday.

Div. Five, in an unpublished opinion by Justice Richard Mosk, reversed a $1.571 million judgment in favor of Rory Cuiellette. The panel said Los Angeles Superior Court Judge Paul Gutman should have told the jury that Cuiellette had the burden of proving that he was able to perform the job of a police officer with or without a reasonable accommodation of his disability.

Cuiellette joined the LAPD in 1984 and worked there until 1998, when he took a leave due to job-related medical problems. He returned to work in 2003 and was briefly assigned to a desk job before the city determined that he could not work as a police officer because the Workers’ Compensation Appeals Board found him permanently totally disabled.

Cuiellette sued the city for violation of the Fair Employment and Housing Act and fundamental public policy.

The city initially prevailed on summary judgment, but the Court of Appeal reversed. It held that the position Cuiellette asserted with respect to his workers’ compensation disability rating did not stop him from claiming that he could work for the LAPD with reasonable accommodation, that his 100 percent disability rating was not—as a matter of law—a valid, nondiscriminatory reason for terminating his employment, and that the city had not established that he “was unable to fulfill the essential duties of the job he sought.”

At retrial, the jury found that the city’s “failure to provide reasonable accommodation and/or engage in the interactive process” was a substantial factor in causing harm to the plaintiff. Its award included $1.2 million for past and future mental suffering and other noneconomic loss and over $300,000 for loss of wages and benefits.

On appeal, the city argued that the trial judge erred in giving a special instruction in lieu of CACI 2541, the standard instruction on reasonable accommodation.

Mosk agreed, noting that the special instruction omitted the standard instruction’s explanation of the burden of proof and told the jury that the city violated the plaintiff’s right to reasonable accommodation.

The justice explained that in a disability discrimination case, the burden is on the plaintiff to show that he or she suffered from or was perceived as suffering from a disability, could perform the essential duties of the job with or without reasonable accommodation, and was subjected to an adverse employment action as a result of the disability.

If the plaintiff’s burden is met, the burden shifts to the employer to show that it had a legitimate, nondiscriminatory reason to take the adverse employment action.

In Cuiellette’s case, Mosk said, the plaintiff’s ability to perform the essential duties of a police officer was at issue, and the trial judge was required to instruct the jury on the burden of proof.

He cited Green v. State of California (2007) 42 Cal.4th 254, in which the Supreme Court ruled that the jury should have been instructed on the burden of proof in the case of an employee who had been found fit for light duty only by a workers’ compensation qualified medical examiner, and whose agency had a policy that precluded employees from remaining employed if not fit for full duty.

“[U]nder Green, even though defendant did not request an instruction that informed the jury that plaintiff had to show that he could perform the essential duties of a police officer with or without reasonable accommodation, the failure to do so or to object to the omission of such an instruction, did not waive the right to the instruction because it is incumbent on the trial court to instruct the jury on all vital issues in the case,” Mosk wrote.

Attorneys on appeal were Robert E. Racine and Irving Meyer for the plaintiff and Deputy City Attorney Paul L. Winnemore for Los Angeles.

The case is Cuiellette v. City of Los Angeles, B203820.


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