Wednesday, February 15, 2017
C.A. Largely Upholds Verdict in Police Recruits’ Bias Suit
Panel Orders Retrial on Part of $12 Million Damage Award
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday upheld a jury’s conclusion that the City of Los Angeles failed to reasonably accommodate injured police recruits, but ordered that a portion of its $12 million damages award be retried.
The action was brought by five former recruits who suffered various injuries while training at the police academy and were actually or constructively discharged as physically unfit for duty.
The Los Angeles Superior Court jury found the city violated the state Fair Employment and Housing Act by discriminating against them based on disability and by failing to make a reasonable effort to accommodate those disabilities, despite their being “qualified individuals” within the meaning of the act.
The recruits presented evidence that under prior city policy, they would have remained in a program called “Recycle” until they were ready to return to their training program. Recycle allowed recruits to work at fully paid light-duty jobs until they were fully healed.
In 2009, however, the city adopted a six-month limit on how long a recruit remain in the program, and told those who has been in it longer than six months, including the plaintiffs, that they had to return to their training programs immediately or leave the department. The Recycle program was discontinued entirely in 2012.
The city argued that the recruits’ injuries made them unqualified for FEHA purposes, but the Court of Appeal disagreed.
“We agree that the plaintiffs were not ‘qualified individuals’ under FEHA for purposes of their discrimination claim but conclude that they satisfied this requirement for their failure to accommodate claim,” Justice John Segal wrote for Div. Seven. “We further conclude that requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law in light of the City’s past policy and practice of doing so.”
The panel also upheld the jury’s awards of past economic damages and past and future noneconomic damages, which plaintiffs’ attorney Matthew McNicholas said amounted to about $5.8 million, or about $7 million with interest. The court reversed the award of future economic damages as speculative, with Segal explaining:
“[G]iven their youth, the short amount of time each of them had spent in the Academy, and the fact that none of them had worked a day as a sworn police officer, the plaintiffs’ personal intentions do not establish with any reasonable certainty that they would ever have become police officers, let alone remain with the Department for over 25 years and retire with maximum benefits.”
The plaintiffs failed to present “critical evidence,” Segal wrote, to support their economic expert’s conclusion that they would have long career with the department. It is unusual, he noted, for plaintiffs in FEHA cases to be awarded “front pay” for the entire length of their working careers.
The court also set aside Los Angeles Superior Court Judge Frederick Shaller’s award of more than $1.63 million in attorney fees, pending retrial.
McNicholas told the MetNews, however, that he is certain the evidence whose absence was noted by the court exists. And because he can claim additional attorney fees if the plaintiffs win on retrial, he said, the eventual recovery could be larger than the one the city appealed.
A city attorney spokesperson could not be reached for comment on the case, Atkins v. City of Los Angeles, B257890, late yesterday.
Copyright 2017, Metropolitan News Company