Brown v. City of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRYL BROWN; MARTIN V. 

WHITFIELD,

Plaintiffs-Appellants, No. 06-55699

v.

 D.C. No.

CV-06-00316-SVW

CITY OF LOS ANGELES, a municipal

corporation organized under the OPINION

laws of the State of California,

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

February 6, 2008—Pasadena, California

Filed April 10, 2008

Before: Cynthia Holcomb Hall, Susan P. Graber, and

Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion

3783

BROWN v. CITY OF LOS ANGELES 3785

COUNSEL

Jerome Zamos, Zamos & Okojie, Woodland Hills, California,

for the plaintiffs-appellants.

Paul L. Winnemore, Deputy City Attorney, Los Angeles, Cal-

ifornia, for the defendant-appellee.

OPINION

PER CURIAM:

I.

Plaintiffs Darryl Brown and Martin Whitfield were injured

in the line of duty as officers of the City of Los Angeles

3786 BROWN v. CITY OF LOS ANGELES

Police Department (“LAPD”). They both applied for benefits

under LAPD’s disability retirement pension, which contains

an offset: disability pension payments are reduced by the

amount of any worker’s compensation award the officer

receives for the disabling injury. Plaintiffs claim that the off-

set amounts to disability discrimination. They sued the City

in state court, alleging violations of (1) Title II of the Ameri-

cans with Disabilities Act of 1990 (“ADA”), (2) California’s

Fair Employment and Housing Act (“FEHA”), and (3) 42

U.S.C. § 1983. After the City removed the case to federal

court, the district court granted its motion for summary judg-

ment and denied Plaintiffs’ cross-motion. Plaintiffs timely

appealed. We affirm.

II.

The following facts are undisputed. The City provides two

distinct retirement pension plans for police officers: a service

pension and a disability pension. The service pension is based

on length of service and age, while the disability pension is

available only to officers who have sustained a work-related

injury and whom the LAPD cannot reasonably accommodate

in employment. The two pensions are also funded differently.

Service pensions are funded in part by employee contribu-

tions, but disability pensions are funded exclusively by City

contributions and investment returns. Officers disabled after

on-the-job injuries and eligible for a service pension can

choose either pension.

No offset results if the injured officer elects the service

pension. However, if an injured officer chooses the disability

pension, the City reduces the payments by the amount of any

worker’s compensation award the officer receives for the dis-

abling injury. See Los Angeles City Charter § 1212(b), (d).

The City adopted this offset to prevent what it characterizes

as “double payment” for a disabling work-related injury. The

City also believes that the offset is needed to preserve the tax-

exempt status of the pension payments.

BROWN v. CITY OF LOS ANGELES 3787

In May 1997, Whitfield applied for a disability retirement

pension based on an injury he sustained in the line of duty. On

his application, Whitfield certified that his injury left him

incapable of performing his duties as an LAPD officer. LAPD

agreed it could not accommodate Whitfield’s medical restric-

tions, and in April 1998, his application was granted. Whit-

field’s disability pension payments were offset by the amount

of a worker’s compensation award he received until February

2004, when the offset ended.

Like Whitfield, Brown also applied for the disability pen-

sion and certified that his injury left him incapable of working

for LAPD. In January 2006, LAPD determined it could not

accommodate Brown’s restrictions, but as of April 2006, no

determination had been made on Brown’s application for ben-

efits. The record does not indicate whether a determination

has yet been made.1

III.

A.

We review de novo the district court’s decision on cross-

motions for summary judgment, applying the same standard

used by the district court. Suzuki Motor Corp. v. Consumers

Union, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003); Arakaki v.

Hawaii, 314 F.3d 1091, 1094 (9th Cir. 2002). We must deter-

mine whether the record, when viewed in the light most

favorable to the non-moving party, shows that there is no gen-

uine issue of material fact and that the moving party is enti-

tled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

1

The uncertain status of Brown’s application suggests that he may lack

standing to challenge the offset in the pension program, as it is unclear

whether it has injured him. We need not address this question, however.

Whitfield clearly has standing, and the presence in a suit of even one party

with standing suffices to make a claim justiciable. E.g., Dep’t of Com-

merce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999).

3788 BROWN v. CITY OF LOS ANGELES

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this

case, Plaintiffs have pointed to no disputed issues of fact, so

our task simply is to determine whether the district court erred

in concluding that the City is entitled to judgment as a matter

of law. As discussed below, we find no error.

B.

Plaintiffs’ claims are for discrimination in the provision of

post-employment fringe benefits available to LAPD officers.

We have previously held that ADA claims concerning

employment discrimination may not be asserted under Title

II, which covers government entities, but lie only under Title

I, which covers employers. Zimmerman v. Or. Dep’t of Jus-

tice, 170 F.3d 1169, 1178 (9th Cir. 1999).2 Plaintiffs attempt

to distinguish Zimmerman because in that case, the employ-

ment claims were for discrimination in hiring, not pensions.

Plaintiffs essentially argue that, unlike jobs themselves, post-

employment benefits are conceptually identical to “public ser-

vices” when they are provided by a government employer,

and therefore that their claims are cognizable under Title II

notwithstanding Zimmerman.

[1] We need not determine whether Zimmerman bars Plain-

tiffs’ Title II claim because it would fail on the merits in any

event. To prevail on the Title II claim, Plaintiffs must, among

other things, show that the City’s offset policy discriminates

“by reason of” their disabilities. 42 U.S.C. § 12132; Thomp-

son v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam).3

They cannot do so.

2

Plaintiffs concede that any Title I claim would fail because they are not

“qualified individuals” who are entitled to sue for employment discrimina-

tion, as they are unable to perform the “essential functions” of their jobs.

See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1108-09

(9th Cir. 2000); 42 U.S.C. § 12111(8).

3

A Title II plaintiff must also show that she (1) is an individual with a

disability; (2) is otherwise qualified to participate in or receive the benefit

of some public entity’s services, programs, or activities; and (3) was either

excluded from participation in or denied the benefits of the public entity’s

services, programs, or activities, or was otherwise discriminated against by

the public entity. 42 U.S.C. § 12132; Thompson, 295 F.3d at 895.

BROWN v. CITY OF LOS ANGELES 3789

[2] We rejected a similar Title II claim in Does 1-5 v.

Chandler, 83 F.3d 1150 (9th Cir. 1996), which we find

instructive, if not controlling. In Chandler, the plaintiffs chal-

lenged a provision of Hawaii’s general assistance program,

which limited benefits to one year for disabled people while

providing durationally-unlimited benefits to people with

dependent children. Id. at 1152. The plaintiffs argued that the

durational limitation amounted to disability discrimination

because it meant Hawaii provided fewer benefits to people

with disabilities without any showing that they needed less

aid than eligible people with dependent children. Id. at 1154.

We disagreed. Under Hawaii law, individuals with disabilities

remained eligible for durationally-unlimited benefits if they

had dependent children. So, rather than providing a unified

program that favored people without disabilities, we viewed

Hawaii as providing two forms of benefits, each of which was

open to disabled people who otherwise qualified. See id.

Accordingly, the disparity in benefits between the two pro-

grams did not violate Title II because “[t]he ADA does not

require equivalent benefits in different programs.” Id. at 1155.

[3] The City’s police pensions here are similarly non-

discriminatory. In addition to the disability retirement pen-

sion, the City also provides the seniority-based service pen-

sion, which is not subject to any offset for worker’s

compensation, and which is clearly distinct from the disability

pension program as evidenced by the different funding mech-

anisms. Officers who qualify for disability pensions may elect

to receive service pensions if they are eligible. So, like the

general assistance program in Chandler, the City provides

two separate pension programs to officers with disabilities.

The two programs need not provide identical benefits.

[4] Moreover, the limitation on the disability pensions —

the offset for worker’s compensation payments — does not

discriminate “by reason of” disability. 42 U.S.C. § 12132. The

offset does not treat disabled officers differently or create dis-

proportionate burdens because of the nature of their limita-

3790 BROWN v. CITY OF LOS ANGELES

tions or even their status as individuals with disabilities. It

simply limits a type of compensation for work-related injuries

that happens to be available only to individuals who are dis-

abled. Most importantly, the limitation merely pertains to the

cause of the injury — that is, whether it was sufficiently

work-related that the officer receives worker’s compensation.

This is not discrimination “by reason of” disability. Cf. Rodde

v. Bonta, 357 F.3d 988, 998 (9th Cir. 2004) (“state action that

disproportionately burdens the disabled because of their

unique needs remains actionable under [Title II]” (emphasis

added)).

Plaintiffs cite no authority to the contrary. Indeed, in the

case upon which they rely most heavily, one of our sister cir-

cuits held that “[t]he ADA requires only that persons with dis-

abilities have the opportunity to receive the same benefits as

non-disabled officers who have given an equivalent amount of

service.” Castellano v. City of New York, 142 F.3d 58, 70 (2d

Cir. 1998) (reviewing a similar claim for pension benefits

under Title I). As we explained above, the City’s pension

scheme meets this requirement.

[5] Therefore, even assuming it is not barred by Zimmer-

man, Plaintiffs’ Title II claim would fail on the merits. Simi-

larly, the FEHA claim fails because Plaintiffs have not met

their prima facie burden to show an adverse action “because

of” their disabilities. E.g., Faust v. Cal. Portland Cement Co.,

58 Cal. Rptr. 3d 729, 745 (Ct. App. 2007). And Plaintiffs

have waived their § 1983 claim by failing adequately to raise

it in their opening brief. Indep. Towers of Wash. v. Washing-

ton, 350 F.3d 925, 929-30 (9th Cir. 2003).

IV.

The decision of the district court is AFFIRMED.