Metropolitan News-Enterprise


Wednesday, December 12, 2012


Page 3


C.A. Says Officer With Heart Problems Not Qualified for Desk Job


By a MetNews Staff Writer


The First District Court of Appeal yesterday affirmed a San Francisco Superior Court judge’s ruling that the San Francisco Police Department is not required to give an administrative assignment to a former officer who can no longer perform strenuous duties for health reasons.

Judge Curtis Karnow Jr. ruled, after a bench trial, that under the Fair Employment and Housing Act, the department did not commit disability discrimination against Kenneth Lui. The department was not required to accommodate Lui with a desk job because he was not qualified to perform such tasks as making forcible arrests and chasing fleeing suspects, the judge said in his statement of decision. 

Justice Mark Simons wrote for the Court of Appeal:

“We affirm, concluding the evidence supports the trial court’s finding that, even though officers in administrative positions are not frequently required to engage in such activities, the strenuous duties are essential functions of the positions because the Department has a legitimate need to be able to deploy officers in those positions in the event of emergencies and other mass mobilizations.”

Lui was an active officer from 1981 to 2005, when he suffered a heart attack. He was subsequently diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease.

He took 11 months of disability leave at full pay, then placed on a one-year temporary modified duty assignment in the records room. At the end of that assignment, in 2007, Lui’s doctor advised the department that was able to “return to full duty” but that his “responsibilities should not include physically strenuous work.”

The department ultimately concluded that Lui could not return to strenuous duty, and that he could not return to the temporary assignment in the records room because of a one-year limit on such assignments in his union’s contract with the city. The city offered to assist him in applying for a non-police officer position, but he declined because it would have adversely affected his pension rights, and instead elected to retire due to industrial disability.

In May 2008, a month after his official retirement date, he sued under FEHA.

Simons, writing for the Court of Appeal, said the trial judge’s ruling was correct because Lui was not a “qualified individual” within the meaning of FEHA.

He cited testimony by the department’s chief financial officer that the city is well below the number of officers mandated by its charter and that the number of full duty officers will continue to decline because of the city’s financial picture. He also cited the city’s preparedness plan, which calls for as many officers as possible to respond following an earthquake, in order to perform unusual tasks like digging survivors out of collapsed buildings and responding to looting.

That evidence supports the city’s position that officers assigned to administrative tasks must be able to fully deploy in an emergency, Simons said.

In an unpublished portion of his opinion, the justice said that the city made a sufficient effort to accommodate Lui by offering to assist him in identifying a city job, other than as a police officer, for which he could qualify.

Simons noted that the city did identify a position within the department, as a language liaison, for which Lui was qualified. But another disabled officer applied for and received the position, the justice noted.

The case is Lui v. City and County of San Francisco, 12 S.O.S. 6350.


Copyright 2012, Metropolitan News Company