Metropolitan News-Enterprise


Monday, April 25. 2011


Page 1


Court of Appeal Upholds Disability Bias Verdict for LAPD Officer


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal on Friday upheld a $1.5 million judgment against the City of Los Angeles for failing to grant accommodation to a disabled police officer and terminating his employment from a desk position.

Div. Five concluded that substantial evidence supported the finding that Rory Cuiellette’s removal from the administrative position he had been assigned to in accordance with a then-existing LAPD policy violated California’s Fair Employment and Housing Act.

The case came before the appellate court three times. The first appeal resulted in a reversal of summary judgment granted in favor of the city and the second, which followed a $1,571,500 jury verdict in Cuiellette’s favor, concerned only the issue of liability. This third appeal followed a retrial on the questions of whether Cuiellette was able to perform the essential duties of a police officer and if the city had failed to accommodate his disability, which were answered in Cuiellette’s favor.

Cuiellette worked for several years as a peace officer before being injured and placed in disability leave. His workers compensation claim subsequently resolved with a finding of 100 percent disability.

‘Light Duty’

In May 2003, Cuiellette contacted one of his former colleagues and expressed an interest in returning to the LAPD to work in the fugitive warrants unit. At his request, Cuiellette’s treating physician sent the city a note authorizing him to perform “permanent light duty—administrative work only.”

Circumstantial evidence presented at trial indicated that this letter was satisfactory to the city since Cuiellette reported to work for the fugitive warrants unit, a purely administrative assignment requiring no field work other than occasionally driving to a nearby courthouse to deliver papers, on May 27, 2003.

Five days later, however, his supervisor informed him that the city would not allow Cuiellette to work because he had been found 100 percent disabled in the workers’ compensation proceedings.

Los Angeles Superior Court Judge Amy D. Hogue found true that at this time in 2003, the city had an informal policy and practice of allowing sworn officers to perform “light duty” assignments that did not entail several essential functions of a peace officer such as making arrests, taking suspects into custody, and driving a police vehicle in emergency situations.

The parties did not dispute that Cuiellette’s disabilities prevented him from performing these more rigorous functions, but Hogue found persuasive evidence that the city maintained permanent “light duty” vacancies in the drug testing and fugitive warrants units for the specific purpose of accommodating disabled officers who wanted to continue to work.

Hogue determined that when Cuiellette was placed in the fugitive warrants unit, he was a beneficiary of this policy, and he was qualified to perform the administrative duties the city assigned to him.

Although she noted testimony that no officer found to be 100 percent disabled had ever been placed on “light duty,” Hogue said “the question is whether Plaintiff’s medical restrictions prevented him from performing the essential functions of the position that he held or that he desired to fill,” and Cuiellette “proved that he could.”

She held that that the city’s decision to “send him home” after learning of the workers’ compensation determination that Cuiellette was 100 percent disabled “was an adverse employment action based on discriminatory criteria” since Cuiellette was able to perform the duties of the “light duty” assignment maintained by the city and the city had not provided any legitimate, non discriminatory reason for terminating his employment.

Mosk’s Reasoning

Writing for the appellate court, Justice Richard M. Mosk agreed, explaining that “[b]ecause the LAPD maintained permanent, light duty positions that it staffed with police officers who could not perform all of the essential duties of a police officer, the relevant inquiry is whether plaintiff was able to perform the essential duties of the light duty assignment he was given on his return to work and not whether he was able to perform all of the essential duties of a police officer in general.”

Mosk cautioned that Friday’s decision did not address “FEHA requirements under later policies or other factual scenarios,” but only “the LAPD policy in effect when plaintiff was sent home.”

Based on the testimony from an officer in the department’s Medical Liaison unit acknowledging the existence of several permanent “light duty” assignments which were filled by sworn officers whose disabilities prevented them from performing the otherwise essential functions of a sworn police officer, Mosk reasoned that substantial evidence supported Hogue’s ruling.

Because the city did not challenge Hogue’s finding that Cuiellette could perform the essential duties of the court desk position, Mosk concluded Cuiellette’s removal from that post based on the 100 percent total permanent disability rating he received in the workers’ compensation proceeding violated FEHA.

Justices Orville A. Armstrong and Sandy R. Kriegler joined Mosk in his decision.

Glendale practitioner Robert E. Racine and Los Angeles attorney Irving Meyer represented Cuiellette, while Deputy City Attorney Paul L. Winnemore represented Los Angeles.

The case is Cuiellette v. City of Los Angeles, B224303.


 Copyright 2011, Metropolitan News Company