Metropolitan News-Enterprise


Tuesday, January 8, 2013


Page 1


Demotion of Officer Who Could No Longer Wield Baton Upheld


By JACKIE FUCHS, Staff Writer


The California Department of Corrections did not improperly discriminate against a correctional officer who was demoted to a non-peace-officer position because he could not wield a baton with both hands, a state Court of Appeal ruled yesterday.

Being able to subdue inmates was a reasonable requirement of the job, and waiving that requirement would have placed both prison employees and inmates at risk, Justice Cynthia Aaron wrote for a unanimous Div. One.

Bruce Furtado began working for the department as a correctional officer in 1981. He was promoted to correctional sergeant in 1988, and to correctional lieutenant in 1994. As a correctional lieutenant, Furtado was classified as a peace officer and required to certify annually in the use of a baton.

In December 1997, while off-duty from his position as a correctional lieutenant at Centinela State Prison, Furtado was involved in an automobile accident which left him with serious injuries, including nerve damage to his left shoulder, forearm, elbow and hand. He was in the hospital for 30 days and needed eight months off from work to recuperate.

Furtado’s physician determined that he could no longer perform the duties of a correctional lieutenant, due to an overall loss of grip strength and range of motion in his left arm and elbow, and difficulty in forming a fist with his left hand.

As a result of his injuries, the department medically demoted Furtado to staff services analyst. Although Furtado eventually obtained a medical release from his physician and was reinstated as a correctional officer within the prison, after only a few days, institution staff expressed doubts about whether Furtado could meet the physical qualifications of a peace officer.

One-on-One Testing

The department arranged for one-on-one testing to determine if Furtado could qualify with a side handle baton. The instructor who tested Furtado concluded that Furtado was “unable to lift [the] baton above [his] head,” and was “unable to lift [his] arm.” He gave Furtado an overall rating of “fail,” noting that Furtado had “very little control over [the] baton when both hands [were] required.”

The department provided Furtado with eight hours of side handle baton training, but the officer who tested him afterward also concluded that Furtado had failed.

Before the department took any action as a result of this second failure to certify with the side handle baton, Furtado submitted a written request for accommodation, saying that his physical limitations were permanent and asking that the requirement that he certify with the baton be waived. He requested “an administrative position that doesn’t require the use of a baton to do some kind of lieutenant administrative duties.”

The department scheduled Furtado for a “fitness-for-duty” evaluation. The examining physician came to the same conclusions as previous doctors, saying that Furtado was impaired in his ability to disarm, subdue, or apply restraints to an inmate, because those activities would require the use of both hands to grasp, hold, twist, and possibly wrest a weapon from an inmate.

Based on those findings, the department denied Furtado’s request that he be allowed to work as an administrative correctional lieutenant. Although the department continued to look for a way to place him in a position in which his disability could be accommodated, ultimately it determined that it would have to medically demote him and place him in a position that did not have the same physical requirements.

Personnel Board Appeal

Furtado appealed to the California State Personnel Board, contending that the department had acted discriminatorily in denying him reasonable accommodation for his disability and in medically demoting him.

After a nine-day evidentiary hearing, the board denied Furtado’s appeal, saying that a correctional lieutenant working in a prison who is physically unable to disarm, subdue or place restraints on an inmate would be a hazard to himself and others.

On Furtado’s appeal from that determination, the panel noted that to establish a prima facie case of physical disability discrimination under the California Fair Employment and Housing Act, an employee must demonstrate that he or she is disabled, is otherwise qualified to do the job, and was subjected to an adverse employment action because of such disability.

Importantly, however, Aaron said, FEHA does not prohibit an employer from discharging an employee who, because of his disability, is unable to perform his essential duties even with reasonable accommodations, or in a manner that would not endanger the health or safety of himself or others even with reasonable accommodations.

The panel concluded that there was substantial evidence that all peace officers who work in a prison facility, even those in primarily administrative jobs, must be able to defend themselves against armed inmates and to disarm, subdue and apply restraints to inmates for the safety of both employees and inmates in the institution.

The evidence also showed that Furtado was unable to perform the essential functions of his position as correctional lieutenant, and that there was no accommodation that would enable him to do so. Accordingly, what was “essentially [a] waive[r] [of] an essential function of a position” was not a reasonable accommodation, and the board did not err in upholding the department’s decision to medically demote Furtado.

Presiding Justice Gilber Nares and Justice James McIntyre concurred in the opinion.

The case is Furtado v. State Personnel Board; D059912.


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