Atkins v. City of Los Angeles

Filed 2/14/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RYAN ATKINS et al., B257890

Plaintiffs and Respondents (Los Angeles County

Super. Ct. No. BC449616)

v.

CITY OF LOS ANGELES,

Defendant and Appellant.

APPEAL from a judgment and postjudgment order of the

Superior Court of Los Angeles County, Frederick C. Shaller,

Judge. Affirmed in part, reversed in part, and remanded.

Michael N. Feuer, City Attorney, James P. Clark, Chief

Deputy City Attorney, Thomas Peters, Chief Assistant City

Attorney, Amy Jo Field, Assistant City Attorney, Blithe S. Bock

and Paul Winnemore, Deputy City Attorneys, for Defendant and

Appellant.

Jones & Mayer, Martin J. Mayer and Denise Rocawich for

California Police Chiefs‟ Association, California State Sheriffs‟

Association and California Peace Officers‟ Association as Amici

Curiae on behalf of Defendant and Appellant.

Greines, Martin, Stein & Richland, Timothy T. Coates and

Alison M. Turner for League of California Cities and California

State Association of Counties as Amici Curiae on behalf of

Defendant and Appellant.

McNicholas & McNicholas, Matthew S. McNicholas,

Douglas D. Winter; Fullerton & Hanna, Lawrence J. Hanna;

Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and

Respondents.

INTRODUCTION

A jury found that the City of Los Angeles violated the

rights of five recruit officers of the Los Angeles Police

Department under the Fair Employment and Housing Act

(FEHA) when the Department terminated or constructively

discharged them from the Police Academy. Each of the recruits

suffered temporary injuries while training at the Academy. At

the time they were injured, the Department had been assigning

injured recruits to light-duty administrative positions indefinitely

until their injuries healed or they became permanently disabled.

The Department ended this practice while the plaintiffs were still

recuperating from their injuries. Rather than allowing them to

remain in their light-duty assignments, the Department asked

them to resign or the Department would terminate them, unless

they could get immediate medical clearance to return to the

Academy. None of the recruits was able to obtain the necessary

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clearance, and the Department terminated or constructively

discharged all of them. The five recruit officers brought this

action.

The jury found that the City unlawfully discriminated

against the plaintiffs based on their physical disabilities, failed to

provide them reasonable accommodations, and failed to engage in

the interactive process required by FEHA. The City challenges

the jury‟s verdict on a number of grounds, including that the

plaintiffs were not “qualified individuals” under FEHA because

they could not perform the essential duties of a police recruit with

or without a reasonable accommodation, and that the City was

not required to accommodate the plaintiffs by making their

temporary light-duty positions permanent or by transferring

them to another job with the City. With respect to the plaintiffs‟

claim for failure to engage in the interactive process, the City

argues that because there were no open positions available for

the plaintiffs, the City did not have to continue the required

interactive process.

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. 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.

Because we affirm the City‟s liability on this basis, we do not

reach the City‟s challenge to the verdict on the plaintiffs‟ claim

for failure to engage in the interactive process.

The City also challenges the jury‟s award of future

economic damages as speculative and excessive. Despite the fact

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that the plaintiffs had completed only hours or weeks of their

Academy training, the jury awarded each of them future

economic losses through the time of their hypothetical

retirements from the Department as veteran police officers. We

agree with the City that such damages are unreasonably

speculative. We therefore vacate that portion of the damages

award, as well as, for now, the trial court‟s award of attorneys‟

fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Plaintiffs and Their Injuries

The City hired Ryan Atkins, Douglas Boss, Justin

Desmond, Anthony Lee, and Eriberto Orea as recruit police

officers between mid-2008 and early 2009. Each of them

entered the Police Academy shortly after he was hired. Upon

successful completion of the Academy‟s six-month training

course, the recruits would have started a 12-month field

probationary period as police officers.

Atkins trained in the Academy for three months before

suffering a knee injury that eventually required surgery. Boss

fractured his ankle two weeks into training. Desmond suffered

an injury while running on the third day of Academy training,

received medical attention, and eventually joined another recruit

class before injuring his groin and back five or six weeks later.

Lee started Academy training in July 2008, resigned a month

later for personal reasons, then joined another recruit class in

December 2008. A week later he injured his knee and underwent

knee surgery in mid-2009. Orea injured his knee on his third day

at the Academy.

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All of the plaintiffs saw City doctors who restricted their

activities in various ways. The City provided physical therapy for

some of the plaintiffs and placed all of them in the “Recycle”

program, which gave the plaintiffs desk jobs while they

recuperated.

B. The Recycle Program and Its Demise

According to the Recruit Officer‟s Manuals dated

September 2007 and May 2009, which the court received into

evidence, recruit officers had to pass a physical fitness

examination that included a mile-and-a-half run and an obstacle

course. Recruits who could not pass this examination were

“recommended for termination from the Department.” When the

plaintiffs joined the Academy, they signed a Physical Condition

Disclosure Form stating that they were “physically qualified and

have no pre-existing physical limitations that would prohibit

[them] from fully participating in all aspects of the Academy

recruit physical conditioning and self-defense training program.”

If a recruit became injured while at the Academy, the City

placed him or her in the Recycle program, which provided

recruits with light-duty administrative jobs until their injuries

healed and they could return (or recycle back) to the Academy.

While in the Recycle program, recruits received full compensation

and benefits.

Before the plaintiffs suffered their injuries, some recruits

had remained in the Recycle program until their injuries healed

or they became permanently disabled. This practice conflicted

with Penal Code section 832.4 and regulations issued by the

California Commission on Peace Officer Standards and Training

(POST), the agency that oversees police officer training

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statewide. Those provisions require recruits to complete their

training and 12-month probationary period within two years.

(See Pen. Code § 832.4; Cal. Code Regs., tit. 11, § 1012.) The

Department referred to this requirement as the “two-year rule.”

In an apparent attempt to ensure compliance with the two-

year rule, the Department adopted the Revised Recruit Officer

Recycle Policy in July 2008. That policy stated: “Once in the

Recycle Program, the recruit officer will have a total of 90-days

to return to full-duty status and/or re-enter an academy class.” If

the recruit remained injured at the end of this 90-day period,

however, the Department would seek a 90-day extension from

POST up to a maximum of six additional months for the recruit

to complete his or her Academy training. “In summary,” the

Policy stated, “any recruit officer with a work restriction(s) or any

other condition that precludes them from fully participating in all

aspects of the Basic Course, which has or will extend beyond

six calendar months, is no longer eligible to remain in the

POST Basic Course.” The Department required new recruits,

including the plaintiffs, to sign a document acknowledging they

had received the Revised Recruit Officer Recycle Policy.

The Department also attempted to avoid violating the two-

year rule by changing the date on which recruit officers were

sworn into the Department. According to POST and Department

practice, the two-year rule did not begin to run until a recruit

swore an oath to uphold the Constitution and to protect the

residents of Los Angeles.1 Thus, rather than swearing in new

1 Penal Code section 832.4 and the corresponding POST

regulation that references that code section require recruits to

complete their training within 24 months “after his or her

employment.” (Pen. Code § 832.4, subd. (b); Cal. Code Regs.,

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recruits on their first day at the Academy, the Department

sought to delay the swearing-in date until graduation from the

Academy. This change apparently required the agreement of the

Los Angeles Police Protective League, the union that represents

City police officers. Following a lengthy meet-and-confer process

with the Police Protective League, the Department and the Police

Protective League signed a Memorandum of Understanding

dated November 5, 2008 stating in part: “The Department shall

not be required to administer the loyalty oath required by state

law and municipal ordinance to recruit officers on the first day of

employment. The actual timing and procedure for the swearing

in of recruit officers shall be at the discretion of the Department.”

The record does not reflect whether the plaintiffs were

sworn in before their separations from the Department. It is

undisputed, however, that all of the plaintiffs and other injured

recruits remained in the Recycle program longer than six months,

notwithstanding the Revised Recruit Officer Recycle Policy.

Also in November 2008, Los Angeles Mayor Antonio

Villaraigosa sent all City departments a memorandum asking

them to reduce their operating budgets, including by reducing the

number of City employees, in light of the “extraordinary financial

challenges” then facing the City. The Mayor‟s memorandum also

announced a “hard hiring freeze.” By March 2009, the City

Council recognized that, despite the City‟s efforts to reduce

spending, its fiscal health continued to deteriorate.

tit. 11, § 1012, subd. (b).) POST, the Department, and the Los

Angeles Police Protective League apparently interpreted the

phrase “after his or her employment” to mean after the date on

which the recruit is sworn.

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Perhaps in response to the City‟s economic difficulties, a

Department management team decided in September 2009 to

enforce the six-month limit on assignments to the Recycle

program by informing recruits who had been in the program

longer than six months that they either had to return to the

Academy or be discharged from the Department. The Officer in

Charge of the Department‟s Training Division, Lieutenant Edgar

Palmer, acknowledged that this decision represented “a

significant and unprecedented change” in Department policy. He

explained, however, that keeping recruits in the Recycle program

longer than six months could compromise the Department‟s

public safety mission and exacerbate its budgetary concerns

because, for every recruit in the Recycle program, “that‟s

[another] position[] that you can‟t hire someone else into. And

the idea is to get the recruits into the Academy, get them through

the six months [of Academy training] and get them out on the

street where they can help public safety.” In 2012 the

Department ended the Recycle program entirely.

C. City Charter Section 1014 Transfers

If a recruit did not recover from his or her injuries and a

doctor declared the recruit‟s disability “permanent and

stationary,” the City sometimes placed the recruit in another City

job inside or outside the Department. The City made these

transfers through section 1014 of the Los Angeles Charter and

Administrative Code (City Charter section 1014). City Charter

section 1014, subdivision (a), allows the City to transfer a “civil

service employee” to another position where the employee is

“incapable of performing satisfactorily the duties of his or her

position because of injury, sickness or disability.” City Charter

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section 1014, subdivision (b), provides that such transfers are

prohibited “if it would result in a promotion” and “unless the

employee possesses the minimum qualifications required for the

[new position] and the capability of performing the required

duties.” Between 2008 and 2010, the Department transferred six

recruits into other City positions under City Charter section

1014. The record does not indicate whether these recruits had

temporary injuries or were permanently disabled.

D. The Plaintiffs‟ Assignments to the Recycle Program

and Their Separations from the Department

1. Ryan Atkins

Atkins first entered the Recycle program in December

2008. He worked in two training center offices where he made

copies, delivered papers, filed documents, and entered data. In

February 2009 Atkins underwent surgery on his knee and then

spent over three months at home recuperating. Atkins returned

to the Recycle program in June 2009 and worked in the Tactics

Division where he entered data, filed documents, and set up

obstacles at a shooting range.

On September 20, 2009 Atkins was summoned to a meeting

with Lieutenant Palmer, Sergeant Irma Krish, who worked in the

Training Division with Palmer, and a representative from the

Police Protective League. Atkins said he suspected the

Department was going to fire him because he was asked to bring

with him any Department-issued equipment and because he

knew of other recruits in the Recycle program whom the

Department had laid off or terminated. Some of those recruits

had told Atkins about City Charter section 1014 transfers, so

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during the meeting with Lieutenant Palmer, Atkins asked him

whether a transfer was possible. Atkins said Lieutenant Palmer

told him that City Charter section 1014 did not apply to his

situation.

Lieutenant Palmer then asked Atkins if he thought he

could return to the Academy, and Atkins said he thought he

could. Lieutenant Palmer told Atkins that if his doctor cleared

him to return to the Academy the Department would reinstate

him that day; otherwise he would have to resign or the

Department would terminate him.

Atkins met with his doctor the same day. He had hurt his

knee during week 18 of the training program and believed he

could return at roughly the same point in the program because

other recruits had told him that had been their experience.

Atkins therefore asked his doctor to clear him to return to week

19 of the program, a point at which, according to Atkins, the

training curriculum and activities were less strenuous. Upon

receiving that medical clearance, Atkins returned to Lieutenant

Palmer‟s office and was told to wait for Captain Michelle

Veenstra, the commanding officer of the Department‟s Training

Division. Some time later Sergeant Krish told Atkins she had

spoken with Captain Veenstra, who said that Atkins would have

to start over from the first week of the Academy because he had

been out for so long. Rather than accept this proposal, Atkins

resigned.

Atkins later explained that he resigned so that his

employment record would not reflect he had been terminated. He

also explained that going back to the first week of the Academy

would have exacerbated his knee injury. He acknowledged that

the Department said it would rehire him (and presumably start

10

his training at week one) when he had completely recovered from

his injuries. Eventually Atkins did fully recover, but he did not

return to the Department.

2. Douglas Boss

Boss first entered the Recycle program in March 2009. He

worked in a drill instructor‟s office and a training center office

where he processed travel authority documents, entered data,

and processed and audited time sheets. By June 2009, when

Boss had not fully recovered from his ankle injury, he became

concerned that he might “run out of time” to complete the

Academy training program. Captain Veenstra suggested that he

meet with a Department psychologist to discuss his concerns.

Boss said the psychologist told him in late June or early July that

Captain Veenstra said that Boss‟s “job” was “to heal” and that,

“whenever that time is, he will go back into an Academy class.”

The commander of the training division at the training center

office where Boss worked reiterated Captain Veenstra‟s message.

He said, “Just heal, don‟t worry about anything else,” and he told

Boss that he would “see to it that [Boss] go[es] back into an

Academy class once [he‟s] healed.”

On September 18, 2009 Sergeant Krish called Boss, told

him to meet with Lieutenant Palmer on September 24, and said

to bring his Department-issued equipment. On that day

Sergeant Krish met Boss outside Lieutenant Palmer‟s office and

told him, “Just so you know, Boss, you‟re to resign today or you‟re

going to be terminated. And if we terminate you, you will never

work in law enforcement again, anywhere.” Once inside

Lieutenant Palmer‟s office, Lieutenant Palmer told Boss that he

had been in the Recycle program for seven months, which

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“exceeded [his] time limit.” Lieutenant Palmer said, “you either

resign or I fire you.” Boss explained to Lieutenant Palmer that

he could not resign because he would not qualify for

unemployment benefits, which he needed for his medical

expenses. Boss said Lieutenant Palmer then told Sergeant Krish

to “put [Boss] at home pending termination.” Boss asked if there

were any other jobs he could do, but Lieutenant Palmer said,

“There‟s no City jobs for you.” On November 24, 2009 Boss met

with Captain Veenstra, who presented him with termination

papers.

Boss received medical clearance to return to all physical

activity in the spring of 2010. He did not reapply to the

Department because Lieutenant Palmer had told him, “If we fire

you, you can‟t come back here.”

3. Justin Desmond

Desmond first entered the Recycle program in November

2008 after injuring his leg on his third day at the Academy.

About two months later he returned to the Academy but suffered

another injury and reentered the Recycle program. Desmond

worked in the Scientific Investigation Division where he entered

fingerprint information into a computer system. He also worked

at the POST Division and the drill instructor‟s office where he

entered data, answered phones, and did some filing.

Desmond said that Justin Fein, who supervised the recruits

assigned to the Recycle program at the time Desmond entered

the program, told Desmond that his “primary function” while in

the program was “to get healthy and to get better.” Fein also told

Desmond that if he did not recover he would “end up getting 1014

just like [Fein did].” Fein explained to Desmond that a “1014”

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happened “when you got hurt with the Department and you ran

out of time in the Academy. [T]hey would transfer you to a

position that wouldn‟t violate your [medical]

restrictions. . . . Once you got healthy you would have the option

to come back to the Academy.” After Sergeant Krish took over

the Recycle program, Desmond said she told a group of recruits

that their “time was ticking and that if we didn‟t get healed soon

we would be forced to resign.”

In early 2010 Desmond said Sergeant Krish told him that

the Department would ask him to resign or, if he refused,

terminate him. In February 2010, while home recuperating from

surgery to repair his groin injury, Sergeant Krish called Desmond

and asked if he was ready to resign. When Desmond refused, he

said Sergeant Krish told him that “if I wanted to play hardball,

she would see to it that I never got a job in the City or law

enforcement” again. In March 2010 Desmond again told

Sergeant Krish that he would not resign, and the Department

officially terminated his employment on March 24, 2010.

Eventually Desmond said several doctors cleared him to

return to work, and in 2012 he and the Department entered into

an oral agreement that allowed him to return to the Academy.

Desmond, however, never returned to the Academy.

4. Anthony Lee

Lee entered the Recycle program in December 2008. He

worked in the offices of the Recycle program and a captain‟s office

where he made copies, filed papers, delivered mail, and entered

data. Lee said Fein told him his “job was to get better,” and “once

you get better, you will . . . get back into an Academy class.” Lee

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said Fein also told him that if he did not get better he would be

“civilianized,” meaning he would get another job with the City.

In July 2009 Lee had surgery on his knee, and in

September 2009 he was in a car accident that injured his

shoulder, neck, wrists, and back. The record suggests Lee

continued to work in the Recycle program while recuperating

from his surgery and his new injuries. After Lee had been in the

program more than six months, he said a sergeant who

supervised the drill instructors at the time told a group of

recruits that they had only six months to recuperate in the

program. Lee became concerned that he would lose his job.

In September 2009 Sergeant Krish ordered Lee to attend a

meeting with Lieutenant Palmer and asked him to bring his

Department-issued equipment. At the meeting Lieutenant

Palmer told Lee that if he resigned Palmer would recommend

that the Department rehire him when he recovered. Lee told

Lieutenant Palmer he did not want to resign. In response,

Lieutenant Palmer said, “Okay, then you‟ll be

terminated . . . [and] you won‟t be able to come back to [the

Department] ever again, and you won‟t be able to get into any

other law enforcement agency.” On November 24, 2009 Lee met

with Captain Veenstra who formally discharged him. In or about

2013 Lee fully recovered from his injuries.

5. Eriberto Orea

Orea entered the Recycle program in approximately

September 2008. At that time, an officer told him that if he could

not return to the Academy he could “civilianize” through a

“program called 1014.” When Orea reported for duty to the

program, Fein asked him about his education and work

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experience and assigned him to work in the POST office where he

filed documents, made phone calls, and updated computer files.

Orea said that the position violated his medical restrictions

because he had to park a long distance from the office, walk down

a hill to get there, and walk up five flights of stairs to get into the

building and office. Upon informing Fein of these concerns, Orea

said Fein told him, “Too bad, that‟s your assignment.” Orea‟s

doctor eventually removed his work authorization, and the

Department assigned Orea to his home.

Orea had surgery on his knee in February 2009 and stayed

home to recover for several months. In June 2009 Fein called

Orea and told him he was being reassigned to “Personnel” under

Donna Baylosis. Orea thought that meant he would be

transferred under City Charter section 1014 because Fein and

others had told Orea that if he did not recover from his injury the

City would find him another job. Baylosis called Orea and asked

him about his education and work experience, and then she

called him on a weekly basis to discuss his ongoing medical

treatment. Baylosis also told Orea about the “1014 program,”

which Orea said Baylosis described as a program for recruits who

are injured and “don‟t recover.” Based on Orea‟s qualifications,

Baylosis stated that the City would determine whether there

were jobs with comparable pay and status that he could fill.

In September 2009 Baylosis told Orea he would have a

meeting with Sergeant Krish and Lieutenant Palmer on

September 23, 2009. Baylosis and Sergeant Krish separately told

Orea to plead his case at that meeting and to ask Lieutenant

Palmer to allow him to return to the Academy or to “civilianize.”

At the meeting, Lieutenant Palmer told Orea he had only two

options, resign or be terminated. Orea said he was “under the

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impression [he] had the possibility of remaining as an injured

Recycle until [he] fully recovered or to civilianize, and once [he]

was better to go back to the Academy.” When Orea asked

Lieutenant Palmer if he could “do the 1014 and civilianize,”

Lieutenant Palmer said, “We‟re not doing that for you.” Orea

also offered to go into the next Academy class pending the results

of an MRI on his knee. Orea said Lieutenant Palmer responded,

“If you resign like you should, I‟ll write some good notes on your

file so you can be rehired; otherwise, I‟ll make it impossible for

you to join [the Department] or any other department.” Orea did

not resign.

Orea called Baylosis to tell her how the meeting went with

Lieutenant Palmer and Sergeant Krish. Baylosis then sent Orea

an email with a link to City job postings that differed from what

the general public could access. She also told Orea she thought

there would be a job posting for a Forensic Print Specialist in the

coming months and asked him to keep in touch and let her know

if he had any questions. The email she sent him also included a

link to information about upcoming civil service examinations.

Orea said he looked at the email Baylosis sent him and thanked

her for the information. Orea did not say whether he ever

investigated any of the job openings listed on the website

identified in Baylosis‟s email or the possibility of taking a civil

service exam.

On November 24, 2009 Orea met with Captain Veenstra

and a representative of the Police Protective League. Orea said

he started to tell Captain Veenstra about the progress he had

made in his recovery, but she told him there was nothing she

could do and she officially discharged him. She did tell him that

he could return to the Academy after he fully recuperated, but

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based on his earlier meeting with Lieutenant Palmer (who

reported to Captain Veenstra), Orea did not believe he could

return to the Department. Eventually Orea fully recovered from

his injuries.

E. The Lawsuit

On November 16, 2010 the plaintiffs sued the City and

Police Chief Charlie Beck. The operative second amended

complaint alleged six causes of action, including unlawful

discharge from a training program based on physical disability,

mental disability, or medical condition in violation of FEHA;

failure to accommodate based on physical disability, mental

disability or medical condition in violation of FEHA; and failure

to engage in the interactive process based on physical disability,

mental disability or medical condition in violation of FEHA.2 The

plaintiffs eventually dismissed Beck with prejudice.

Trial began April 21, 2014. At the close of the plaintiffs‟

case, the City brought a motion for nonsuit on the ground that

the plaintiffs were conditional employees whose sole job was to

pass the Academy, who admittedly could not do so at the time

they separated from the Department, and who were not entitled

to a reasonable accommodation under FEHA. The City argued in

the alternative that it had accommodated the plaintiffs through

the Recycle program and by offering them the opportunity to

resign and return to the Academy when they had fully

recuperated. Finally, the City argued that it fulfilled its duty to

engage in the interactive process because that process “was

2 The plaintiffs did not proceed at trial on the other three

causes of action.

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ongoing” from the time the plaintiffs suffered their injuries

through their assignments to the Recycle program.3

The trial court denied the motion to allow the jury to

determine whether the City unlawfully denied the plaintiffs the

same benefits that other recruits had received in the Recycle

program and under City Charter section 1014. With respect to

the plaintiffs‟ claim for failure to engage in the interactive

process, the court said the scope of actions the City should or

could have taken was a factual issue for the jury. “[R]ecognizing

it‟s a close call,” the court denied the City‟s motion.

The jury ultimately found in favor of the plaintiffs on all

three causes of action and awarded each plaintiff past and future

economic and noneconomic losses. In total, the jury awarded the

plaintiffs over $12 million. The court entered judgment on the

jury‟s verdict on May 21, 2014.

F. Posttrial Motions, Attorneys‟ Fees, and the Appeal

The City moved for a new trial and for judgment

notwithstanding the verdict, both of which the trial court denied.

The plaintiffs then filed a motion for attorneys‟ fees and costs.

On September 29, 2014 the trial court granted their motion and

awarded plaintiffs reasonable attorneys‟ fees in the total amount

of $1,632,110. The City timely appealed from the judgment

entered in favor of plaintiffs following the jury trial and from the

trial court‟s order denying the City‟s motion for judgment

notwithstanding the verdict. The City also timely appealed from

3 The City also argued that no evidence supported Atkins‟s

claim that the City constructively discharged him because he

voluntarily resigned. The City does not appeal the trial court‟s

adverse ruling on this ground.

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the trial court‟s order granting attorneys‟ fees and costs to

plaintiffs. We consolidated the City‟s appeals.

DISCUSSION

“FEHA prohibits several employment practices relating to

physical disabilities. First, it prohibits employers from refusing

to hire, discharging, or otherwise discriminating against

employees because of their physical disabilities. [Citation.]

Second, it prohibits employers from failing to make reasonable

accommodation for the known physical disabilities of employees.

[Citation.] Third, it prohibits them from failing to engage in a

timely and good faith interactive process with employees to

determine effective reasonable accommodations.” (Nealy v. City

of Santa Monica (2015) 234 Cal.App.4th 359, 371; see Lui v. City

and County of San Francisco (2012) 211 Cal.App.4th 962, 970.)

“Separate causes of action exist for each of these unlawful

practices.” (Nealy, at p. 371; see McCaskey v. California State

Automobile Assn. (2010) 189 Cal.App.4th 947, 987.)

The City challenges all three of the bases for its liability

under FEHA. With regard to the plaintiffs‟ discrimination claim,

the City argues that the plaintiffs failed to show a prima facie

case of discrimination because they could not perform the

essential functions of a police recruit even with reasonable

accommodations. In connection with the plaintiffs‟ claim for

failing to make reasonable accommodations, the City argues that

FEHA does not entitle what the City calls “pre-probationary

trainees” like the plaintiffs to reasonable accommodations, and,

even if it did, the plaintiffs failed to show that there was a

reasonable accommodation available for them. According to the

City, this failure also dooms the plaintiffs‟ claim for failure to

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engage in the interactive process. Finally, the City challenges

the award of damages as “astonishing” and the award of

attorneys‟ fees as excessive.

A. Standard of Review

The standard of review on appeal from a trial court‟s denial

of a motion notwithstanding the verdict is “„“whether any

substantial evidence—contradicted or uncontradicted—supports

the jury‟s conclusion.”‟” (Webb v. Special Elec. Co., Inc. (2016) 63

Cal.4th 167, 192; see Jorge v. Culinary Institute of America

(2016) 3 Cal.App.5th 382, 396.) “For evidence to be substantial, it

must be of ponderable legal significance, reasonable, credible,

and of solid value. [Citation.] The „focus is on the quality, not the

quantity, of the evidence.‟” (Jorge, at p. 396; see Lui, supra, 211

Cal.App.4th at p. 969.) “We resolve all evidentiary conflicts and

indulge all reasonable inferences in support of the judgment.”

(Jorge, at p. 396; see Webb, at p. 192; Cuiellette v. City of Los

Angeles (2011) 194 Cal.App.4th 757, 765.)

“„Questions of statutory interpretation, and the

applicability of a statutory standard to undisputed facts, present

questions of law, which we review de novo.‟” (Cuiellette, supra,

194 Cal.App.4th at p. 765; see Jenkins v. County of Riverside

(2006) 138 Cal.App.4th 593, 604.) “What plaintiff had to show in

order to prevail on his FEHA claim is a question of statutory

interpretation that we review de novo.” (Cuiellette, at p. 765.)

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B. Substantial Evidence Does Not Support the Jury‟s

Verdict that the City Discriminated Against the

Plaintiffs

FEHA makes it unlawful for an employer to discriminate

against an employee because of the employee‟s physical

disability. (Gov. Code, § 12940, subd. (a);4 Green v. State of

California (2007) 42 Cal.4th 254, 262.) The City does not contest,

and we therefore assume for purposes of this appeal, that the

plaintiffs‟ temporary injuries constituted “physical disabilities”

under FEHA. (See § 12926, subd. (m).) Thus, we do not address

the argument by amici curiae that FEHA does not apply to such

temporary disabilities “with absolutely no long-term or

permanent impact.” (See Bullock v. Philip Morris USA, Inc.

(2011) 198 Cal.App.4th 543, 572 [“[a]n amicus curiae ordinarily

must limit its argument to the issues raised by the parties on

appeal, and a reviewing court need not address additional

arguments raised by an amicus curiae”]; Rental Housing Owners

Assn. of Southern Alameda County, Inc. v. City of Hayward

(2011) 200 Cal.App.4th 81, 95, fn. 13 [“[g]enerally, „an amicus

curiae accepts a case as he or she finds it,‟ and „additional

questions presented . . . by an amicus curiae will not be

considered‟”].)

Section 12940 specifically limits the reach of FEHA by

“„excluding from coverage those persons who are not qualified,

even with reasonable accommodation, to perform essential job

duties.‟” (Cuiellette, supra, 194 Cal.App.4th at p. 766; accord,

Green, supra, 42 Cal.4th at p. 262.) Section 12940, subdivision

(a)(1), provides: “This part does not prohibit an employer from

4 Undesignated statutory references are to the Government

Code.

21

refusing to hire or discharging an employee with a physical or

mental disability . . . where the employee, because of his or her

physical or mental disability, is unable to perform his or her

essential duties even with reasonable accommodations, or cannot

perform those duties in a manner that would not endanger his or

her health or safety or the health or safety of others even with

reasonable accommodations.”

Thus, “[s]ection 12940 does not classify all distinctions

employers make on the basis of physical disability as unlawful

discrimination.” (Cuiellette, supra, 194 Cal.App.4th at p. 766;

accord, Green, supra, 42 Cal.4th at p. 262.) “Instead, such

distinctions are prohibited „only if the adverse employment action

occurs because of a disability and the disability would not

prevent the employee from performing the essential duties of the

job, at least not with reasonable accommodation.‟” (Cuiellette, at

p. 766; see Green, at p. 262.) To establish that an employer has

discriminated on the basis of a disability in violation of FEHA,

the plaintiff employee has the burden of proving he or she could

perform “the essential functions of the job with or without

reasonable accommodation.” (Green, at p. 260; see Furtado v.

State Personnel Board (2013) 212 Cal.App.4th 729, 744;

Cuiellette, at p. 766.)

FEHA defines “essential functions” as the “fundamental job

duties of the employment position the individual with a disability

holds or desires.” (§ 12926, subd. (f).) The City argues that,

because the City hired the plaintiffs as recruit officers, they must

show they were able to perform the essential functions of a police

recruit in order to be qualified individuals entitled to protection

under FEHA. The City argues that the plaintiffs cannot satisfy

22

their burden of proof under FEHA because they failed to show

that they could perform those essential functions.

The plaintiffs do not directly respond to the City‟s

argument. Instead, they contend that the relevant question is

whether they could perform the essential functions of the

positions to which they sought reassignment. The plaintiffs‟

argument improperly conflates the legal standards for their claim

under section 12940, subdivision (a), for discrimination, and their

claim under section 12940, subdivision (m), for failure to make

reasonable accommodation, including reassignment. In

connection with a discrimination claim under section 12940,

subdivision (a), the court considers whether a plaintiff could

perform the essential functions of the job held—or for job

applicants, the job desired—with or without reasonable

accommodation. (See Hastings v. Department of Corrections

(2003) 110 Cal.App.4th 963, 971 [to establish a FEHA claim for

discrimination “the plaintiff must prove he is qualified for the

position for which an accommodation is sought,” not for another

position requested as a reassignment]; see also Furtado, supra,

212 Cal.App.4th at p. 755 [distinguishing in the context of a

failure to accommodate claim between the showing FEHA

requires of “those seeking a position and those already in the

position”].)

The question whether the plaintiffs could perform the

essential functions of a position to which they sought

reassignment is relevant to a claim for failure to accommodate

under section 12940, subdivision (m), and to a claim for failure to

engage in the interactive process under section 12940,

subdivision (o). (See Raine v. City of Burbank (2006) 135

Cal.App.4th 1215, 1223 [reassignment may be required where

23

“the employee cannot be accommodated in his or her existing

position”]; Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th

1376, 1389 [an employer generally has a duty under FEHA to

reassign a disabled employee whose limitations cannot be

reasonably accommodated in his or her current job]; Cal. Code

Regs., tit. 2, § 11068, subd. (d)(1)(A) [reassignment may be a

reasonable accommodation where “the employee can no longer

perform the essential functions of his or her own position even

with accommodation”]). Thus, for the plaintiffs‟ discrimination

claim, the issue is whether the plaintiffs could perform the

essential functions of a police recruit.

1. The “Essential Functions” of a Police Recruit

Evidence of “essential functions” may include the

employer‟s judgment, written job descriptions, the amount of

time spent on the job performing the function, the consequences

of not requiring employees to perform the function, the terms of a

collective bargaining agreement, the work experiences of past

incumbents in the job, and the current work experience of

incumbents in similar jobs. (§ 12926, subd. (f)(2); see Furtado,

supra, 212 Cal.App.4th at p. 743.) The record includes a variety

of evidence establishing that the essential functions of a police

recruit include rigorous physical demands and that the position‟s

qualifications include successful completion of the Academy

training program and obtaining POST certification.

The Department‟s Commanding Officer of Personnel

Division testified that, in general, recruit officers must be able to

perform the essential functions of police officers. The job posting

for a police officer at the time of the plaintiffs‟ separations from

the Department stated that officers “must be in excellent health,

24

with no conditions that would restrict [their] ability to safely

complete Academy training and perform police work.” This

requirement mirrors state law, which requires that peace officers

“be free from any physical, emotional, or mental condition that

might adversely affect the exercise of the powers of a peace

officer.” (§ 1031, subd. (f); see White v. County of Los Angeles

(2014) 225 Cal.App.4th 690, 706 [standards of Government Code

section 1031 “are part of every peace officer‟s job description, and

must be maintained throughout a peace officer‟s career”].)5

The Department‟s specifications for the position of a police

officer also listed a variety of qualifications including the ability

to “[e]xert the physical stamina, strength, flexibility, and

coordination to pursue and restrain fleeing suspects and defend

oneself from physical attack.” Similarly, a Department document

titled “Essential Job Functions” stated that the position of police

officer “exists to perform the function[s]” of making forcible

arrests, controlling suspects, and searching, transporting, and

booking suspects, among other things. (See Lui, supra, 211

Cal.App.4th at p. 966 [identifying essential functions of a police

officer by reference to police department‟s “Sworn Members

Essential Job Functions” list].) This document also stated that

the “work experience of past or current” police officers included

5 “Physical condition is evaluated by a licensed physician and

surgeon. „[M]ental and emotional condition is . . . evaluated by a

psychiatrist or psychologist with five years[ ] experience in the

diagnosis and treatment of emotional and physical disorders, and

who has met education and training procedures set forth by the

California Commission on Peace Officer Standards and Training

designed for the conduct of preemployment psychological

screening of peace officers.‟” (California Dept. of Justice v. Board

of Administration etc. (2015) 242 Cal.App.4th 133, 141.)

25

the Academy training program, an 18-month probationary period,

and POST certification.

The goal of the Academy training program was to ensure

police recruits could perform as required in the field. (See

Hastings, supra, 110 Cal.App.4th at p. 967.) Completing the

Academy training and obtaining POST certification requires

considerable physical strength and exertion. The Department‟s

Director of Police Training and Education testified that recruits

must be able to scale a five-foot wall, pass a self-defense test, and

successfully complete other physical tests. She stated that

recruits who fail a required physical test can retake that test, but

if a recruit fails a second time he or she is automatically expelled

from the Academy. Recruits must also meet all POST standards

before graduating from the Academy. According to the POST

Bureau Chief for Training Program Services, POST standards

require recruits to go over a six-foot fence in a certain amount of

time, sprint 500 yards, navigate an obstacle course that

simulates movements in a police foot chase, and drag a 150-160

pound dummy a certain distance.

The City‟s evidence showed that the essential functions of a

police officer or recruit included demanding physical tasks. The

plaintiffs did not introduce any evidence to the contrary.

2. Undisputed Evidence Shows The Plaintiffs

Could Not Perform the Essential Functions of a

Police Recruit Even With a Reasonable

Accommodation

The plaintiffs do not contend on appeal, nor did they

contend at trial, that they could have completed the Academy

training program or performed the essential functions of a police

26

officer at the time of their separations from the Department.

Indeed, none of the plaintiffs received medical clearance to

continue his training until well after he left the Department.

Instead, the plaintiffs argue that they met their burden of

proof by showing that they could perform the essential functions

of the position of a recruit officer with a reasonable

accommodation. Their suggested accommodation, however,

would eliminate one or more essential functions of the job of a

police recruit or officer, which renders the proposed

accommodation unreasonable as a matter of law for purposes of a

discrimination claim under section 12940, subdivision (a).

Under FEHA, “reasonable accommodation” means “„a

modification or adjustment to the workplace that enables the

employee to perform the essential functions of the job held or

desired.‟” (Furtado, supra, 212 Cal.App.4th at p. 745, italics

omitted; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)

166 Cal.App.4th 952, 974.) While the reasonableness of an

accommodation is ordinarily a question of fact (Nealy, supra, 234

Cal.App.4th at p. 374; Raine, supra, 135 Cal.App.4th at p. 1227,

fn. 11), FEHA does not require employers to eliminate essential

functions of a job to accommodate a disabled employee. (See

Nealy, at p. 375 [“elimination of an essential function is not a

reasonable accommodation”]; Furtado, at p. 753 [waiving an

essential requirement would mean that the plaintiff “would not

have to demonstrate that he is a „qualified individual‟” under

FEHA]; Lui, supra, 211 Cal.App.4th at p. 985 [“FEHA did not

obligate defendant to accommodate plaintiff by excusing him

from the performance of essential functions”]; Cal. Code Regs.,

tit. 2, § 11068, subd. (b) [“[w]here a quality or quantity standard

is an essential job function, an employer . . . is not required to

27

lower such a standard as an accommodation”].) As the court in

Nealy explained, requiring employers to eliminate an essential

function of a job to accommodate a disabled employee “would be

at odds with the definition of the employee‟s prima facie case”

under FEHA. (Nealy, at p. 375.) The employee‟s burden includes

“showing he or she can perform the essential functions of the job

with accommodation, not that an essential function can be

eliminated altogether to suit his or her restrictions.” (Ibid.)

The plaintiffs contend that a reasonable accommodation

included transferring them to other City positions under City

Charter section 1014 or allowing them to remain in the Recycle

program, neither of which included the physical duties required

of police recruits. For purposes of the discrimination claim,

however, FEHA did not require the City to accommodate the

plaintiffs by eliminating an essential function of the position of

police recruit, such as modifying the Academy training program

or requirement, waiving the POST certification requirement, or

eliminating from a recruit officer‟s job duties the ability to make

forcible arrests and control suspects. (See Furtado, supra, 212

Cal.App.4th at p. 753 [plaintiff‟s “request that the Department

essentially waive an essential function of a position is not a

„reasonable accommodation‟”]; Hastings, supra, 110 Cal.App.4th

at p. 971 [plaintiff failed to establish a prima facie case of

discrimination under FEHA because “he is unable to perform the

essential functions of a correctional officer (even with reasonable

accommodation)”].) Thus, the plaintiffs failed to show that they

were “qualified individuals” under FEHA by showing that they

28

could perform the essential functions of a police recruit even with

reasonable accommodation.6

C. The Jury‟s Verdict That the City Failed To Make

Reasonable Accommodations for the Plaintiffs Is

Supported by Substantial Evidence and Is Not

Contrary to Law

The City argues that the jury‟s verdict finding the City

liable under section 12940, subdivision (m), for failing to make

reasonable accommodations must be reversed because, as a

matter of law, “pre-probationary trainees like plaintiffs” are not

entitled to accommodation by reassignment. Alternatively, the

City argues that the plaintiffs failed to show that funded, open,

and comparable positions for which they were qualified were

available at the time of their respective separations from the

Department.

6 Because we conclude that the plaintiffs failed to prove a

prima facie case for discrimination under section 12940,

subdivision (a), we do not consider whether, as the City argues,

the plaintiffs also failed to demonstrate that the City‟s reason for

constructively discharging the plaintiffs—the so-called two-year

rule—was pretextual. (See Nealy, supra, 234 Cal.App.4th at

p. 378 [evidence that an employer‟s stated reason for an adverse

employment action is pretextual becomes relevant only after the

plaintiff establishes his or her prima facie case and the employer

rebuts the presumption of discrimination by offering a legitimate,

nondiscriminatory reason for the adverse action]; accord,

Swanson v. Morongo Unified School District (2014) 232

Cal.App.4th 954, 965; Jenkins, supra, 138 Cal.App.4th at p. 603.)

29

1. Reassignment as a “Reasonable

Accommodation” Under FEHA

FEHA imposes on employers the duty to reasonably

accommodate their employees‟ physical disabilities. (Cuiellette,

supra, 194 Cal.App.4th at p. 766; Scotch v. Art Institute of

California (2009) 173 Cal.App.4th 986, 1003.) Specifically,

section 12940, subdivision (m)(1), makes it an unlawful

employment practice to “fail to make reasonable accommodation

for the known physical or mental disability of an applicant or

employee.” FEHA defines “reasonable accommodation” to include

“reassignment to a vacant position.” (§ 12926, subd. (p)(2); see

Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(N).) Whereas an

employer may not violate subdivision (a) of section 12940 by

terminating a disabled employee who cannot perform the

essential functions of his or her job even with a reasonable

accommodation, the employer may violate subdivision (m) of

section 12940 if the employer fails to reasonably accommodate

that employee by reassigning him or her to a comparable, vacant

position whose essential functions the employee can perform.

Where a disabled employee requests reassignment as an

accommodation, “FEHA requires the employer to offer the

employee „comparable‟ or „lower graded‟ vacant positions for

which he or she is qualified.” (Nealy, supra, 234 Cal.App.4th at

p. 377; see Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).)

FEHA does not require reassignment if there is no vacant

position the employee is qualified to fill. (Nealy, at p. 377;

Cuiellette, supra, 194 Cal.App.4th at p. 767; Spitzer, supra, 80

Cal.App.4th at p. 1389.) Nor does FEHA generally require the

employer to promote the employee or to create a new position for

30

the employee. (Nealy, at p. 377; Spitzer, at p. 1389; Cal. Code

Regs., tit. 2, § 11068, subd. (d)(4).)

“„[A]n employer is relieved of the duty to reassign a

disabled employee whose limitations cannot be reasonably

accommodated in his or her current job only if reassignment

would impose an “undue hardship” on its operations.‟”

(Cuiellette, supra, 194 Cal.App.4th at p. 767; see Spitzer, supra,

80 Cal.App.4th at p. 1389.) For example, FEHA may require as a

reasonable accommodation a finite leave of absence to allow an

employee time to recover from temporary injuries, but FEHA

does not generally require an employer to provide an indefinite

leave of absence to await possible future vacancies. (Nealy,

supra, 234 Cal.App.4th at pp. 377-378; Nadaf-Rahrov, supra, 166

Cal.App.4th at p. 968.) An employer‟s policy or practice of

offering other employees the same or similar assistance or

benefits requested by the plaintiff, however, is relevant to

determining whether such assistance or benefits are

“reasonable.” (See Cuiellette, at p. 767; Raine, supra, 135

Cal.App.4th at p. 1227, fn. 10; Prilliman v. United Air Lines, Inc.

(1997) 53 Cal.App.4th 935, 950-951.)

Like a claim for discrimination under section 12940,

subdivision (a), a claim for failure to accommodate under section

12940, subdivision (m), requires the plaintiff to show that he or

she is a “qualified individual” under FEHA. (See Furtado, supra,

212 Cal.App.4th at pp. 744-745; Nadaf-Rahrov, supra, 166

Cal.App.4th at p. 977.) Where the plaintiff contends that an

employer failed to accommodate by reassigning him or her to

another position, “the plaintiff proves he or she is a qualified

individual by establishing that he or she can perform the

essential functions of the position to which reassignment is

31

sought, rather than the essential functions of the existing

position.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th

245, 255-256; accord, Furtado, at p. 755; Nadaf-Rahrov, at p. 977;

see Lui, supra, 211 Cal.App.4th at p. 971; Cuiellette, supra, 194

Cal.App.4th at p. 769.) “Arguably, [the] plaintiff‟s burden of

proving he is a qualified individual includes the burden of

proving which duties are essential functions of the positions he

seeks.” (Lui, at p. 972.)

The duty to reasonably accommodate a disabled employee

is a continuing one that is not exhausted by one effort. (Swanson

v. Morongo Unified School District (2014) 232 Cal.App.4th 954,

969.) “A single failure to reasonably accommodate an employee

may give rise to liability, despite other efforts at accommodation.”

(Ibid.; accord, A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th

455, 464-465.)

2. An Employer‟s Duties Under FEHA, Including

the Duty To Provide Reassignment as a

Reasonable Accommodation, Extends to

Probationary or “Pre-Probationary” Employees

FEHA requires reassignment as a reasonable

accommodation for employees, but not applicants. (See Cal. Code

Regs., tit. 2, § 11068, subd. (d)(1) [as a reasonable

accommodation, an employer may offer “an employee” a suitable,

vacant position for which “the employee” is qualified].)

Applicants are not entitled to reassignment because, unlike

employees, they have never performed the essential functions of

the original position and therefore are not initially qualified

individuals under FEHA. (See Quinn v. City of Los Angeles

(2000) 84 Cal.App.4th 472, 483 [employer had no obligation

32

under FEHA to accommodate an employee who “was never

qualified to be hired from the outset”]; see also Equal

Employment Opportunity Com., Enforcement Guidance:

Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act (2002) § 25 (EEOC Guidance),

available at

https://www.eeoc.gov/policy/docs/accommodation.html; 29 C.F.R.

Pt. 1630, App., § 1630.2(o).)7

7 The EEOC‟s Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the Americans with

Disabilities Act states that an employee who “has never

adequately performed the essential functions” of his or her job “is

not entitled to reassignment because s/he was never „qualified‟ for

the original position.” (EEOC Guidance, supra, at § 25.) Any

such employee “is similar to an applicant who applies for a job for

which s/he is not qualified, and then requests reassignment,” but

“[a]pplicants are not entitled to reassignment.” (Ibid.) Similarly,

the EEOC‟s Interpretive Guidance on Title I of the Americans

With Disabilities Act, published as an appendix to 29 Code of

Federal Regulations Part 1630, states: “In general, reassignment

should be considered only when accommodation within the

individual‟s current position would pose an undue hardship.

Reassignment is not available to applicants. An applicant for a

position must be qualified for, and be able to perform the

essential functions of, the position sought with or without

reasonable accommodation.” (29 C.F.R. Pt. 1630, App.,

§ 1630.2(o).) The EEOC‟s “definition of „reasonable

accommodation‟ appropriately guides our construction of the

state laws” because “the California Legislature has modeled the

reasonable accommodation requirements of section 12940(m) and

section 12940(n) on the parallel federal requirements.” (Nadaf-

Rahrov, supra, 166 Cal.App.4th at p. 974; see also Spitzer, supra,

80 Cal.App.4th at p. 1384.)

33

The City argues that FEHA did not require it to

accommodate the plaintiffs by reassigning them to another

position because, as “pre-probationary” employees who never

completed their Academy training or probationary field

assignments, the plaintiffs never qualified to become police

officers and thus were not “qualified individuals” for purposes of

their claim for failure to make reasonable accommodations. In

essence, the Department argues we should treat the plaintiffs

like applicants for employment in the Department rather than

employees of the Department. We find no basis in the statute or

other authorities for making “pre-probationary,” probationary, or

other employees in training ineligible for reassignment where

such an accommodation is otherwise reasonable.

a. FEHA applies to probationary and so-

called “pre-probationary” employees

In Hastings v. Department of Corrections (2003) 110

Cal.App.4th 963 the court stated, “Whether a probationary

employee is entitled under the FEHA to reassignment to a vacant

position appears to be one of first impression,” but the court

never answered that question. (See id. at p. 972.) Instead, while

concluding the plaintiff in that case did not qualify for the

position to which he sought reassignment, the court in Hastings

did not address whether FEHA would have required the

employer to reassign him to that position if he had been qualified

for it. (See id. at pp. 976-977.)

In Swanson v. Morongo Unified School District, supra, 232

Cal.App.4th 954 the court held that FEHA protects

“probationary” employees, including by requiring reassignment,

where such reassignment is reasonable. (Id. at pp. 967-968, 970.)

34

In that case an “untenured, probationary teacher” sued a school

district under FEHA for not renewing her teaching contract after

the teacher had requested a new assignment that would have

accommodated her medical condition. (Id. at p. 967.) The school

district argued that, because the plaintiff had no right to renewal

of her contract, the district could assign her to any teaching

position it deemed appropriate. (Ibid.) The court disagreed,

stating that “[n]either [the plaintiff‟s] probationary status nor the

District‟s discretion to make teaching assignments deprives [the

plaintiff] of the FEHA‟s protections or otherwise allows the

District to unlawfully discriminate against her.” (Ibid.) The

court observed that, if FEHA did not protect probationary

employees because they could be terminated at any time, FEHA

“would never apply to an at-will employee,” which clearly is not

the law. (See id. at p. 968.)

We acknowledge that the plaintiff in Swanson, unlike the

plaintiffs in this case, was a veteran teacher of over 30 years, who

was not in training at the time her employer allegedly refused to

accommodate her medical condition. (See Swanson, supra, 232

Cal.App.4th at p. 959.) Nevertheless, we agree with the Swanson

court‟s conclusion that an employee‟s probationary status does

not, in and of itself, deprive an employee of the protections of

FEHA, including a reasonable reassignment. The statute does

not distinguish between the types of reasonable accommodations

an employer may have to provide to employees on probation or in

training and those an employer may have to provide to other

employees. We decline to read into FEHA a limitation on an

employee‟s eligibility for reassignment based on an employee‟s

training or probationary status. (See Kunde v. Seiler (2011) 197

Cal.App.4th 518, 531 [“„“[u]nder the standard rules of statutory

35

construction, we will not read into the statute a limitation that is

not there”‟”]; Friends of Lagoon Valley v. City of Vacaville (2007)

154 Cal.App.4th 807, 826 [“it is not the court‟s place to insert

words into the statute”].) Instead, the trier of fact should

consider whether an employee is on probation or in training in

determining whether a particular reassignment is comparable in

pay and status to the employee‟s original position. (See Nealy,

supra, 234 Cal.App.4th at p. 377; Cal. Code Regs., tit. 2, § 11068,

subd. (d)(1), (2).)

Moreover, as the court in Swanson observed, probationary

or otherwise untenured employees are akin to at-will employees

under FEHA. (Swanson, supra, 232 Cal.App.4th at p. 968.) As

with at-will employees, employers ordinarily can terminate

probationary employees without good cause, notice, or a hearing.

(California School Employees Assn. v. Governing Bd. of East Side

Union High School Dist. (2011) 193 Cal.App.4th 540, 543, fn. 2.)

FEHA nevertheless prohibits unlawful discrimination against

such employees and entitles them to reassignment where

reasonable. (Jensen, supra, 85 Cal.App.4th at pp. 250, 266 [at-

will employee stated claim for failure to provide reasonable

accommodation by reassignment]; cf. Rosenfeld v. Abraham

Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 898

[“[a]t-will employees, like other employees, are protected [by

FEHA] from terminations which are „motivated by legally

proscribed, invidious discriminatory attitudes, such as animus

toward a particular race or gender‟”]; McGrory v. Applied Signal

Technology, Inc. (2013) 212 Cal.App.4th 1510, 1524 [the reason

for terminating an at-will employee “need not be wise or correct

so long as it is not grounded on a prohibited bias”].) FEHA

entitles probationary and “pre-probationary” employees, like at-

36

will employees, to reasonable accommodation by reassignment in

appropriate circumstances.

b. Determining whether probationary

employees are “qualified” for

reassignment

As noted, where a FEHA plaintiff claims an employer failed

to accommodate by reassigning him or her to another position,

“the plaintiff proves he or she is a qualified individual [under

FEHA] by establishing that he or she can perform the essential

functions of the position to which reassignment is sought, rather

than the essential functions of the existing position.” (Jensen,

supra, 85 Cal.App.4th at p. 256; see Furtado, supra, 212

Cal.App.4th at p. 755; Nadaf-Rahrov, supra, 166 Cal.App.4th at

p. 977.) To distinguish between employees who may be entitled

to reassignment and applicants or others who were never

qualified for the job in the first instance, however, a plaintiff

alleging a FEHA violation based on the failure to reassign must

also show, as the City argues, that he or she actually performed

the essential duties of the original position for some period of

time. (See Quinn, supra, 84 Cal.App.4th at p. 483 [city had no

obligation to explore possible accommodations for officer who

“was never qualified to be hired from the outset”].)

The City argues the relevant yardstick for evaluating

whether the plaintiffs qualify for reassignment is the position of a

police officer, not a police recruit. According to the City, because

the plaintiffs never completed the Academy and thus never

performed the essential functions of a police officer, they are not

entitled to reassignment. In support, the City points primarily to

the EEOC Guidance, which “sets forth an employer‟s legal

37

obligations regarding reasonable accommodation” under the

federal Americans with Disabilities Act (ADA). The EEOC

Guidance answers the question, “Is a probationary employee

entitled to reassignment?” as follows: “Employers cannot deny a

reassignment to an employee solely because s/he is designated as

„probationary.‟ An employee with a disability is eligible for

reassignment to a new position, regardless of whether s/he is

considered „probationary,‟ as long as the employee adequately

performed the essential functions of the position, with or without

reasonable accommodation, before the need for a reassignment

arose.” (EEOC Guidance, supra, § 25.)

The EEOC Guidance continues: “The longer the period of

time in which an employee has adequately performed the

essential functions, with or without reasonable accommodation,

the more likely it is that reassignment is appropriate if the

employee becomes unable to continue performing the essential

functions of the current position due to a disability. If, however,

the probationary employee has never adequately performed the

essential functions, with or without reasonable accommodation,

then s/he is not entitled to reassignment because s/he was never

„qualified‟ for the original position. In this situation, the

employee is similar to an applicant who applies for a job for

which s/he is not qualified, and then requests reassignment.

Applicants are not entitled to reassignment.” (Ibid., italics

added.)

The EEOC Guidance thus provides that probationary

employees may be entitled to reassignment unless they could

never perform the essential functions of their “original position.”

Contrary to the City‟s argument, the EEOC Guidance does not

identify the “original position” as the position to which a

38

probationary employee may be promoted upon completion of his

or her probation. In fact, the EEOC Guidance does not appear to

contemplate circumstances in which, as here, an employee is

hired into a training program from which he or she graduates

into a different position. With regard to probationary employees

in general, however, the EEOC Guidance requires employers to

offer a reasonable reassignment so long as a disabled employee

had performed the essential functions of his or her “current

position” before requesting reassignment, not the position the

employee would hold upon completing probation. (See EEOC

Guidance, supra, § 25 [reassignment may be appropriate “if the

employee becomes unable to continue performing the essential

functions of the current position,” italics added]; ibid. [providing

an example of an employee who “work[ed] successfully” in her

“current position” for nine months before requesting

reassignment due to disability]; ibid. [reassignment is not

required where an employee “was never able to perform the

essential functions of the position . . . for which he was hired,”

italics added].) This interpretation is consistent with the cases

cited by the City for its interpretation of the EEOC Guidance and

with California authorities.

The City cites a federal district court‟s unpublished

decision in O‟Brien v. Napolitano (N.D. Cal. Feb. 8, 2012, C 10-

01830 EDL) 2012 WL 423732, which, unlike the EEOC Guidance,

is closer to this case because it involves a probationary employee

hired into a training position. The court in O‟Brien held that the

plaintiff in that case was “not entitled to reassignment as an

accommodation because she was a probationary employee who

did not pass the training requirement and never adequately

performed the essential functions” of her job. (Id. at p. 17, italics

39

added.)8 As in this case, the plaintiff in O‟Brien was hired into a

two-year training program, at the successful conclusion of which

she could be “converted to a career or career-conditional

appointment.” (Id. at p. 2.) Also as in this case, the essential

functions of the plaintiff‟s training program and the eventual

career position included strenuous physical activity. (Id. at

p. 10.) Unlike this case, however, the undisputed evidence in

O‟Brien showed that the plaintiff was never able to perform

certain essential functions of her training position, not even for a

single day, because she had been diagnosed with a debilitating

medical condition before she was hired into the training program.

(Id. at p. 4.) Moreover, the court in O‟Brien emphasized that

under some scenarios probationary employees can be entitled to

accommodation by reassignment. (See id. at p. 46 [citing

Kennelly v. Pennsylvania Turnpike Commission (E.D. Pa. 2002)

208 F.Supp.2d 504, which held that a probationary employee may

be entitled to reassignment where the employee was qualified to

8 In rejecting the plaintiff‟s claim for failure to accommodate

under the ADA, the court in O‟Brien appears to have relied both

on the plaintiff‟s status as a probationary employee and on the

fact that she had not performed the essential functions of her job.

(O‟Brien, at pp. 10-11.) The case cited by O‟Brien, Kennelly v.

Pennsylvania Turnpike Commission (E.D. Pa. 2002) 208

F.Supp.2d 504, involved a probationary employee, but that fact

was not a factor in the Kennelly court‟s decision to deny the

employer‟s motion for summary judgment. Instead, the court in

Kennelly concluded that there was a genuine issue of material

fact regarding whether the employee was “„qualified‟ for the

original position” because of his disability. (Kennelly, at p. 513.)

The plaintiff‟s status as a probationary employee was not legally

significant in that case.

40

perform the duties of his original position before becoming

disabled].)

The facts in O‟Brien were similar to those in Quinn v. City

of Los Angeles, supra, 84 Cal.App.4th 472, another case on which

the City relies. In Quinn, a former police officer sued the City

under FEHA after the Department terminated his employment.

(Id. at p. 475.) At the time the plaintiff originally applied, he had

a hearing impairment, which he disclosed to the Department.

(Id. at p. 476.) As an applicant he failed a “sound localization

test” and thus failed the requisite medical exam. (Id. at pp. 476-

477.) As a result of a clerical error, however, the Department

hired the plaintiff into the Academy, which he successfully

completed. (Id. at p. 477.) After becoming a probationary patrol

officer the plaintiff‟s condition interfered with his ability to hear

the police radio and his partner‟s instructions, and the

Department assigned him to a desk job before ultimately

terminating his employment. (Ibid.) Following a jury verdict in

favor of the plaintiff, the Court of Appeal reversed, holding that

the plaintiff could not prevail on a claim for discrimination under

FEHA because “uncontradicted evidence” (id. at p. 482) showed

the plaintiff “was never initially qualified for the position from

which he was discharged” (id. at p. 483). The court distinguished

this fact pattern from one in which “an employee properly

hired . . . subsequently suffers an adverse employment decision

because of his disability.” (Ibid.)

This case involves the fact pattern the court in Quinn

distinguished. The City in this case never contended the

plaintiffs were not “properly hired” or could not adequately

perform the essential functions of a police recruit before they

were injured. Instead, the City argues that employees like the

41

plaintiffs should not be entitled to any reasonable accommodation

including reassignment.9 Neither FEHA nor any other authority

cited by the City or its amicus curiae supports this argument.

Instead, those authorities support the conclusion that

probationary and “pre-probationary” employees in training are

entitled to the benefits and protections of FEHA, including the

right to reasonable accommodations.

Where such an employee alleges a FEHA violation based on

the failure to reassign him or her to another position, the

employee has the burden to prove he or she had adequately

performed the essential functions of the position he or she held

for some period of time before becoming disabled. The City does

not contest that the plaintiffs were able to perform the essential

functions of a police recruit at the time they were hired, nor that

each of them performed those duties, even if only for a relatively

short time. As the EEOC Guidance explains, the question then

becomes whether the period of time in which the plaintiffs

adequately performed the duties of a police recruit makes

reassignment a “reasonable” accommodation. (See EEOC

Guidance, supra, § 25.) Whether reassigning the plaintiffs to

another position was “reasonable” is a question of fact for the

9 The City also argues that, as “pre-probationary employees,”

the plaintiffs “were not even entitled to any due process rights for

termination.” (See Cilderman v. City of Los Angeles (1998) 67

Cal.App.4th 1466, 1471 [probationary officer “was afforded the

due process appropriate to his status as a probationary

employee”].) Whether the plaintiffs were entitled to the due

process rights of tenured officers, however, is not relevant to the

City‟s obligations under FEHA, which extend to both

probationary and non-probationary employees.

42

jury. (See Nealy, supra, 234 Cal.App.4th at p. 374 [the

“reasonableness of an accommodation generally is a question of

fact” for the jury]; accord, Raine, supra, 135 Cal.App.4th at

p. 1227, fn. 11; Hanson v. Lucky Stores, Inc. (1999) 74

Cal.App.4th 215, 228, fn. 11.)10

3. Reassignment to the Recycle Program Was

Legally and Factually Reasonable

The City argues that FEHA did not require it to reassign

plaintiffs to other positions with the City or to the Recycle

program until the plaintiffs healed or their disabilities became

permanent. We conclude that reassignment to the Recycle

program until the plaintiffs recovered or became permanently

disabled was not unreasonable under the facts of this case and

10 The City observes that recruits are hired into “temporary

training positions” under Los Angeles Civil Service Rule 5.30, but

does not argue that the plaintiffs are not entitled to

accommodation by reassignment for this reason. Amici curiae

take this position, citing Jenkins, supra, 138 Cal.App.4th 593 for

the proposition that employers of temporary employees have no

duty to accommodate those employees by reassigning them to

permanent positions. (See id. at p. 604.) Jenkins makes clear,

however, that its holding and the designation of the employee in

that case as “temporary” depend on the facts and ordinances at

issue in the case. (See id. at pp. 603-607.) Because the parties in

this case have not briefed this issue, we do not reach it. We note,

however, that the City‟s past practice of accommodating injured

recruits in the Recycle program for various periods of time and

through City Charter section 1014 transfers is inconsistent with

the position that such recruits were mere “temps” with limited

rights like the plaintiff in Jenkins.

43

that substantial evidence supports the jury‟s verdict that the

plaintiffs were qualified for such an assignment.11

a. Reassignment to a temporary

position is not unreasonable as a matter

of law

The City contends that reassigning the plaintiffs to the

Recycle program until they recovered or became permanently

disabled is per se unreasonable because FEHA does not require

employers to temporarily accommodate injured employees

indefinitely or to convert a temporary position into a permanent

one. The City‟s statement of the law is not entirely correct.

While FEHA does not require such accommodations, the law is

that, to the extent an employer‟s policies or practices indicate

such accommodations are reasonable, an employer may violate

FEHA by not making those accommodations available to all

employees.

In Raine, supra, 135 Cal.App.4th 1215 this court

acknowledged that FEHA does not require an employer to make

a disabled employee‟s temporary assignment permanent or to

create a new position for a disabled employee, “at least when the

employer does not regularly offer such assistance to disabled

employees.” (Raine, at pp. 1226, 1228, italics added; see Lui,

supra, 211 Cal.App.4th at p. 982.) In Raine the City of Burbank

assigned the plaintiff, a disabled police officer, to a desk job while

he recuperated from injuries. When his disability became

permanent, the plaintiff asked the City of Burbank to assign him

11 We do not consider whether a transfer under City Charter

section 1014 to another City department was reasonable and

supported by the evidence.

44

permanently to the desk job, a position normally reserved for

civilians. (Raine, at pp. 1219-1220.) The evidence showed that

the “only persons working the front desk on a permanent basis

[were] civilian police technicians.” (Id. at p. 1226.) Thus, this

court held that the requested reassignment was unreasonable

under FEHA. (Id. at p. 1227 & fn. 11.) We explained, “an

employer has no duty (absent perhaps workplace precedent

suggesting its reasonableness) to accommodate a disabled

employee by making a temporary accommodation permanent if

doing so would require the employer to create a new position just

for the employee.” (Id. at p. 1227, fn. omitted, italics added.)

Cuiellette illustrates how such workplace precedents can

affect an employer‟s duties under FEHA. In Cuiellette the Los

Angeles Police Department assigned a permanently disabled

officer to a “purely administrative assignment requiring no field

work.” (Cuiellette, supra, 194 Cal.App.4th at p. 761.) Several

days later the Department informed the officer that the City

“could not allow him to work because he was „100% disabled.‟”

(Id. at p. 762.) At that time, however, “„the City of Los Angeles

had a longstanding 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.‟” (Ibid.) A lieutenant in the Department

testified that, during his tenure with the Department, the City

accommodated hundreds of disabled officers by placing them in

light-duty assignments. (Ibid.) Indeed, even though the City had

identified the essential duties of a police officer to include

strenuous physical tasks that disabled officers could not perform,

“„the City maintained permanent “light duty” vacancies in the

45

drug testing and fugitive warrants units for the specific purpose

of accommodating disabled officers who wanted to continue to

work.‟” (Id. at pp. 762-763.)

Following a court trial, the trial court found that the City

violated FEHA because it denied the plaintiff the accommodation

he sought even though the City had an “informal policy” of

“„permanently assigning disabled officers to positions that did not

require many of the essential functions of a sworn police officer.‟”

(Cuiellette, supra, 194 Cal.App.4th at p. 763.) In affirming, the

Court of Appeal acknowledged the holding of Raine and the

general proposition that FEHA does not require an employer to

make a temporary position available indefinitely to accommodate

a disabled employee, but found Raine factually distinguishable

because the Department had not restricted the placement of

disabled officers into temporary light-duty jobs at the time the

plaintiff sought that assignment. (Cuiellette, supra, at pp. 767-

769.)

Similarly, in Lui, the court held that the reasonableness of

a particular accommodation must be determined in light of an

employer‟s policies and practices. There, unlike the

circumstances in Cuiellette, the San Francisco Police Department

changed its policy of allowing injured police officers to remain in

light-duty jobs indefinitely long before the plaintiff in that case

sought such an accommodation. (Lui, supra, 211 Cal.App.4th at

p. 965.) Thus, when the employment of the plaintiff police officer

in Lui approached a one-year time limit on his light-duty

assignment, the San Francisco Police Department told the

plaintiff he could seek a transfer to another city job, disability

retirement, an unpaid leave of absence, or sick or family medical

46

leave, but he could not stay in his light-duty desk job indefinitely.

(Id. at p. 966.)

The court in Lui held that the San Francisco Police

Department had not violated FEHA and found that the facts in

that case were more like those in Raine than those in Cuiellette.

(Lui, supra, 211 Cal.App.4th at pp. 982-983.) The court

explained: “Cuiellette supports the proposition that employers

must provide accommodations into permanent light-duty

assignments if such assignments exist; Cuiellette does not

support the proposition that employers are required to create

permanent light-duty assignments to accommodate disabled

employees.” (Lui, at pp. 982-983.) The San Francisco Police

Department‟s policy in force at the time the plaintiff became

disabled assigned injured officers to administrative positions on a

temporary basis only. Thus, the San Francisco Police

Department “was not obligated to make plaintiff‟s [light-duty]

assignment permanent, or to convert a different administrative

position into a permanent light-duty position exempt from the

duties in the [essential duties] List.” (Lui, at p. 983.)

This case is more like Cuiellette than Raine and Lui. As in

Cuiellette, the Department had a longstanding practice of

allowing injured recruits to remain in the Recycle program

indefinitely until they healed and could return to the Academy or

until their disabilities became permanent. Lieutenant Palmer

described the new policy of restricting injured recruits‟

assignments in the program to six months as “a significant and

unprecedented change” in Department policy. That change

occurred in September 2009, long after the plaintiffs became

injured and entered the Recycle program. While FEHA does not

require the Department to accommodate recruit officers injured

47

after the change in policy by allowing them to remain in the

Recycle program indefinitely, the City could not treat the

plaintiffs differently than it had treated other recruit officers who

were injured before the change in policy. Indeed, in Lui when the

San Francisco Police Department changed a similar policy it

“grandfathered in” the officers accommodated under the old

policy. (See Lui, supra, 211 Cal.App.4th at p. 966.)

We do not question the sincerity of the City‟s position that

it had legitimate reasons to end the Recycle program, and that,

going forward, Raine “instructs that the City is not obligated to

revive this non-functional program.” Nevertheless, having

created the Recycle program and allowed past recruit officers to

stay in the program until they recovered or became permanently

disabled, the City could not deny the same accommodation to the

plaintiffs, who entered the program before the City‟s change in

policy. (See Claudio v. Regents of University of California (2005)

134 Cal.App.4th 224, 228 [in “unusual circumstances, created by

the [defendant] itself, we cannot say it was unreasonable as a

matter of law for plaintiff to request” a particular

accommodation]; see also U.S. Airways, Inc. v. Barnett (2002) 535

U.S. 391, 405-406 [an unreasonable accommodation may become

reasonable in light of an employer‟s policy or even exceptions to

that policy].)12

12 The City also failed to convince the jury that allowing the

plaintiffs to remain assigned to the Recycle program longer than

six months was unreasonable in light of the fact that each of the

plaintiffs signed the Revised Recruit Officer Recycle Policy

limiting assignments to the Recycle program to six months.

Notably, that Policy does not state whether recruits who cannot

48

b. The plaintiffs were qualified for and

capable of performing the essential

functions of an assignment to the Recycle

program

At trial the plaintiffs did not explicitly identify the

essential functions of their positions in the Recycle program or

introduce testimony of their qualifications for those positions.

Each of the plaintiffs, however, identified his duties in the

Recycle program as including filing, answering phones, entering

data, processing paperwork, and performing other clerical work,

and the plaintiffs spent a considerable time performing these

duties. The City never contested the plaintiffs‟ abilities to

perform the jobs assigned to them in the Recycle program, nor

did the City contend that the plaintiffs were not qualified for

those jobs. Thus, because all of the plaintiffs had in fact

performed satisfactorily while in the Recycle program,

substantial evidence supports the jury‟s finding that the plaintiffs

were qualified for and capable of performing the essential

functions of a position in the Recycle program until they

recovered fully or their disabilities became permanent. (See

Cuiellette, supra, 194 Cal.App.4th at p. 763 [by having performed

the administrative duties assigned to him, the plaintiff “proved

that he could perform the essential functions of the position he

aspired to fill and actually filled for a brief period of time”]; id. at

pp. 762, 772 [trial court‟s finding that the plaintiff could perform

the essential duties of a desk assignment he filled for “several

days” supported the plaintiff‟s claim for failure to accommodate

by reassignment].)

remain in the Academy would be terminated or transferred,

where possible, to another Department or City position.

49

4. The City Failed To Demonstrate That Assigning

the Plaintiffs to the Recycle Program Would

Cause Undue Hardship

Although the City does not make the argument on appeal,

at trial the City suggested that maintaining the Recycle program

for the benefit of the plaintiffs and similarly situated recruits

would have caused the City undue hardship. The City, however,

failed to convince the jury that any hardship was sufficient to

make an otherwise reasonable accommodation unreasonable.13

Section 12940, subdivision (m)(1), places the burden of

demonstrating undue hardship on the employer. (Wallace v.

County of Stanislaus (2016) 245 Cal.App.4th 109, 126-127;

Hastings, supra, 110 Cal.App.4th at p. 972.) “Undue hardship”

means “an action requiring significant difficulty or expense, when

considered in light of the following factors: [¶] (1) The nature and

cost of the accommodation needed. [¶] (2) The overall financial

resources of the facilities involved in the provision of the

reasonable accommodations, the number of persons employed at

the facility, and the effect on expenses and resources or the

impact otherwise of these accommodations upon the operation of

13 In addressing the question in the verdict form regarding

undue hardship during his closing argument, counsel for the City

stated, “As I mentioned earlier, if everybody who started the

Academy were injured, when they get injured, if they were to all

of a sudden have a claim to a permanent City job elsewhere, it

would certainly cause a hardship. It would mean there would be

scores, if not more, people that would be able to short-circuit the

civil service system [and] get in without tests.” The jury

answered “no” to the verdict questions, “Was the accommodation

requested by [each plaintiff] one that would have created an

undue hardship on the City of Los Angeles?”

50

the facility. [¶] (3) The overall financial resources of the covered

entity, the overall size of the business of a covered entity with

respect to the number of employees, and the number, type, and

location of its facilities. [¶] (4) The type of operations, including

the composition, structure, and functions of the workforce of the

entity. [¶] (5) The geographic separateness or administrative or

fiscal relationship of the facility or facilities.” (§ 12926, subd. (u).)

“„Whether a particular accommodation will impose an undue

hardship for a particular employer is determined on a case by

case basis‟” (29 C.F.R. § 1630.15(d) (Appendix: Interpretative

Guidance on Title I of the Americans with Disabilities Act)) and

“is a multi-faceted, fact-intensive inquiry.” (Bryant v. Better

Business Bureau of Greater Maryland, Inc. (D.Md. 1996) 923

F.Supp. 720, 737 [applying 42 U.S.C. § 12111 and 29 C.F.R.

§ 1630.2(p), whose definitions of “undue hardship” mirror those in

FEHA].)

CACI No. 2545, pursuant to which the trial court

instructed the jury on undue hardship, provides that undue

hardship is an affirmative defense that the employer has the

burden to prove. The trial court instructed the jury here that to

succeed on this defense the “City of Los Angeles must prove that

the accommodations would be significantly difficult or expensive

to make.” Among the factors the trial court told the jury to

consider were the nature and cost of the accommodation, the

City‟s ability to pay for it, the impact of the accommodation on

the City‟s operations, the number of City employees and the

relationship of those employees‟ duties to one another, and the

51

administrative and financial relationship of the City‟s facilities to

one another.14

Thus, under California law and the instructions provided to

the jury, an employer must do more than simply assert that it

had economic reasons to reject a plaintiff‟s proposed

reassignment to demonstrate undue hardship. (See Swanson,

supra, 232 Cal.App.4th at p. 968.) An employer must show why

and how asserted economic reasons would affect its ability to

provide a particular accommodation. (Ibid.) Where, as here, an

employer fails to meet its burden of proving undue hardship, the

question on appeal is “„whether the evidence compels a finding in

favor of the appellant as a matter of law.‟” (Sonic Mfg.

Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th

456, 465.) Specifically, the question is whether the City‟s

evidence of financial burden was (1) “„“uncontradicted and

unimpeached”‟” and (2) “„“of such a character and weight as to

leave no room for a judicial determination that it was insufficient

to support a finding.”‟” (Dreyer‟s Grand Ice Cream, Inc. v. County

of Kern (2013) 218 Cal.App.4th 828, 838; accord, Almanor

Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th

761, 769; Wells Fargo Bank, N.A. v. 6354 Figarden General

Partnership (2015) 238 Cal.App.4th 370, 390; see In re R.V.

(2015) 61 Cal.4th 181, 201 [where party fails to meet its burden

on an issue in the trial court, “the inquiry on appeal is whether

the weight and character of the evidence . . . was such that the

[trial] court could not reasonably reject it”].) In fact, “[w]here, as

here, the judgment is against the party who has the burden of

proof, it is almost impossible for him to prevail on appeal by

14 The City does not challenge this instruction.

52

arguing the evidence compels a judgment in his favor.” (Bookout

v. State of California ex rel. Dept. of Transportation (2010) 186

Cal.App.4th 1478, 1486.)

The City has not met its “almost impossible” burden of

showing the evidence compels a finding that the

accommodations—in this case, reassignment to the Recycle

program for an uncertain period of time—would cause undue

hardship. The City explained at trial that it ended the Recycle

program to comply with the two-year rule and to enable the

Department to hire new, healthy recruits. The jury also heard

testimony, however, that the consequences of failing to comply

with the two-year rule were insubstantial because, had the

plaintiffs been able to return to the Academy, the Department

would have allowed them to do so even though their return would

have violated the rule. Moreover, undisputed evidence showed

that other injured recruits had remained in the Recycle program

longer than six months, notwithstanding the Department‟s stated

intent to end policies and practices inconsistent with the two-year

rule.

On the issue of the economic burden of assigning the

plaintiffs to the Recycle program, Francois Gardere,

Commanding Officer of Personnel Division, testified that the City

had implemented a hiring freeze in 2009. Because of the freeze,

the Department was not able “to add any salaries to our account”

without permission from the City Administrative Officer. Officer

Gardere did not state, however, whether the Department ever

sought or was denied such permission. Deputy Chief Jose Perez

also testified that the hiring freeze affected the City‟s ability to

hire new employees into civilian positions, but he did not

comment on the freeze‟s impact on sworn officer positions. With

53

regard to police recruits, Lieutenant Palmer testified that “when

you have 43 or so recruits in [the] Recycle program, that‟s 43

recruit positions that you can‟t hire someone else into. And the

idea is to get the recruits into the Academy, get them through the

six months [of Academy training] and get them out on the street

where they can help public safety.”

While this testimony ostensibly tied the economic cost of

assigning the plaintiffs to the Recycle program to potentially

lower staffing levels, the City offered no evidence to explain why

this would result in “significant difficulty or expense.” (§ 12926,

subd. (u); see Swanson, 232 Cal.App.4th at p. 968 [rejecting the

employer‟s economic burden argument where “the evidence does

not show any reduction in funding required the elimination of

[the plaintiff‟s position] or prevented the [defendant] from

reassigning another [employee] to fill the [position] offered to [the

plaintiff] or the [position] she ultimately received”].) For

example, the City did not offer any evidence to show either that

the expense of hiring additional recruits would have been too

great in relation to the City‟s financial health or that the City

could not have met its public safety needs if the plaintiffs

remained in the Recycle program or if the City could not have

hired additional recruits. (See, e.g., E.E.O.C. v. Amego, Inc. (1st

Cir. 1997) 110 F.3d 135, 148-149 [medical facility demonstrated

undue hardship by introducing evidence of the cost of hiring an

additional employee to cover the duties plaintiff could not

perform and by showing that the resulting staff-to-patient ratio

would violate funding contracts and service plans]; Vande Zande

v. State of Wis. Dept. of Admin. (7th Cir. 1995) 44 F.3d 538, 542

[employer may prove undue hardship by establishing that the

costs of the proposed accommodation are excessive in relation

54

either to its benefits or to the employer‟s financial health or

survival]; cf. Lui, supra, 211 Cal.App.4th at pp. 974-977 [police

department proved that all officers, even those assigned to

administrative duties, must be able-bodied by providing

extensive evidence of the impact on public safety caused by a

reduction in the number of “full duty” officers and the

department‟s inability to hire more full duty officers due to

budget cuts].) The City‟s evidence does not compel a result

contrary to the jury‟s finding that the accommodations requested

by the plaintiffs would not have imposed an undue hardship on

the City.15

D. The Damages Awards for Future Economic Damages

Were Speculative

The City attacks the jury‟s future economic damages

awards as speculative and excessive.16 In particular, the City

argues the damages the jury awarded for future economic losses

were “astonishing” and “patently excessive” because the plaintiffs

were “trainees who had completed only 8 hours to 18 weeks of

training” and the awards assume the plaintiffs would have

15 Because we will affirm a judgment if it is supported by a

verdict on any cause of action (Roby v. McKesson Corp. (2009) 47

Cal.4th 686, 702; Tavaglione v. Billings (1993) 4 Cal.4th 1150,

1155; see Carr v. Barnabey‟s Hotel Corp. (1994) 23 Cal.App.4th

14, 17 [“[w]e will affirm if a single cause of action is supported by

the evidence”]), we do not reach the City‟s argument that

substantial evidence does not support the jury‟s finding the City

failed to engage in the interactive process.

16 The City does not challenge the awards for past economic

damages or the awards for noneconomic damages.

55

passed the Academy, completed their probationary periods,

become career officers, and retired from the Department. We

agree with the City that the damages awards for future economic

losses are speculative.

1. Relevant Proceedings

The trial court properly instructed the jury that future

economic damages include the amount of income, earnings,

salary and wages the plaintiffs would be “reasonably certain to

lose in the future as a result of the injury.” The plaintiffs

introduced evidence of such losses through the testimony of an

expert witness, Karen Smith. For all of the plaintiffs except Lee,

Smith assumed the plaintiffs eventually would have returned to

the Academy, complete their training, and become sworn police

officers. Because Lee apparently was not “medically cleared” to

return to the Academy at the time of trial, Smith assumed he

eventually would have obtained a job with the City (presumably

through a 1014 transfer) as a management analyst.17

17 The record does not definitively state whether Lee could

have returned to the Academy. He testified that he was “cleared

to return to work” some time in 2013, and the City repeatedly

states that Lee and the other plaintiffs were temporarily injured

and had fully recovered from their injuries by the time of trial.

In their respondents‟ brief on appeal, however, the plaintiffs

reiterate that Smith‟s testimony assumed Lee could not have

returned to the Academy. Although we do not reach the question

whether a transfer under City Charter section 1014 was a

reasonable and available accommodation, the City does not

contest the basis for Lee‟s damages award. The City contends

only that the damages awarded were speculative and excessive

56

Based on these assumptions, Smith calculated the present

value of what each plaintiff would have earned had they worked

as police officers (or in the case of Lee, as a management analyst)

for 25-33 years, earning promotions along the way, and then

received retirement income and benefits. Smith subtracted from

these future earnings as mitigation the amounts the plaintiffs

expected to earn in their then-current jobs, which Smith referred

to as “offset earnings.” Lee was not working at the time of the

trial, but Smith assumed he eventually would become a retail

sales clerk. The plaintiffs also introduced into evidence a

“summary of present value of economic losses” Smith had

prepared for each plaintiff.

The City did not introduce any expert testimony on

economic damages. Nor did the City challenge Smith‟s

credentials, object to her testimony, or object to the admission of

any of the summaries of economic losses she had prepared. On

cross-examination, however, Smith admitted her calculations

rested on five key assumptions: that the plaintiffs (with the

exception of Lee) would graduate from the Academy, complete

their probationary periods, “like being police officers,” stay with

the Department until retirement age, and “be enamored enough

with the job” to stay another five years to collect additional

retirement benefits. When asked how she “c[a]me up with these

assumptions,” Smith said, “This is what I do on most of the

cases.” She admitted she did not have a “crystal ball that says

[the plaintiffs are] actually going to work” for the Department, or

at all, for all of the years included in her estimates.

and, with regard to Lee in particular, that the amount Smith

used to calculate his offset was speculative.

57

Collectively, the jury awarded the plaintiffs over $6.5

million in future lost earnings, and the City moved for a new trial

on the basis that the damages award was speculative and

excessive. The trial court denied the motion, noting that Smith‟s

conclusions were admitted into evidence “unchallenged” because

the City did not object that they lacked foundation. The trial

court found the damages award was not even “close to

unreasonable.”

2. Standard of Review and Governing Law

Code of Civil Procedure section 657, subdivision (5),

authorizes the trial court to vacate or modify a verdict or grant a

new trial where the damages are excessive. On appeal from an

order denying a new trial for damages, “[w]e make „“[a]ll

presumptions favor the trial court‟s ruling, which is entitled to

great deference because the trial judge, having been present at

trial, necessarily is more familiar with the evidence and is bound

by the more demanding test of weighing conflicting evidence

rather than our standard of review under the substantial

evidence rule. . . . [W]e do not reassess the credibility of witnesses

or reweigh the evidence. To the contrary, we consider the

evidence in the light most favorable to the judgment, accepting

every reasonable inference and resolving all conflicts in its

favor.‟” [Citations.] „The evidence is insufficient to support a

damage award only when no reasonable interpretation of the

record supports the figure.‟” (Rony v. Costa (2012) 210

Cal.App.4th 746, 753-754; see Janice H. v. 696 North Robertson,

LLC (2016) 1 Cal.App.5th 586, 602; Mendoza v. City of West

Covina (2012) 206 Cal.App.4th 702, 720.)

58

“„Whether a plaintiff “is entitled to a particular measure of

damages is a question of law subject to de novo review.”‟”

(Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1324; accord,

Rony, supra, 210 Cal.App.4th at p. 753.) “„“The amount of

damages, on the other hand, is a fact question . . . [and] an award

of damages will not be disturbed if it is supported by substantial

evidence.”‟” (Bermudez, at p. 1324; accord, Rony, at p. 753.) We

can reverse the trial court‟s ruling “„only on the ground that the

verdict is so large that, at first blush, it shocks the conscience and

suggests passion, prejudice or corruption on the part of the jury.‟”

(Janice H., at p. 602; see Bender v. County of Los Angeles (2013)

217 Cal.App.4th 968, 986; see also Seffert v. Los Angeles Transit

Lines (1961) 56 Cal.2d 498, 511 (dis. opn. of Traynor, J.) [“„[t]o say

that a verdict has been influenced by passion or prejudice is but

another way of saying that the verdict exceeds any amount

justified by the evidence,‟” quoting Zibbell v. Southern Pac. Co.

(1911) 160 Cal. 237, 255].)

A damage award must not be “„“speculative, remote,

imaginary, contingent, or merely possible.”‟” (In re Estate of

Kampen (2011) 201 Cal.App.4th 971, 991-992; Toscano v. Greene

Music (2004) 124 Cal.App.4th 685, 694; Piscitelli v. Friedenberg

(2001) 87 Cal.App.4th 953, 989; see Regalado v. Callaghan (2016)

3 Cal.App.5th 582, 602 [“[a]n award of damages must be

predicated on something more than mere possibilities”].) Courts

reviewing damages for the loss of future earnings have held such

damages are recoverable “„where the evidence makes reasonably

certain their occurrence and extent.‟” (Toscano, at p. 694; see

Licudine v. Cedars–Sinai Medical Center (2016) 3 Cal.App.5th

881, 887 [“the jury must fix a plaintiff‟s future earning capacity

based on what it is „reasonably probable‟ she could have

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earned”].) Indeed, “[d]amages must, in all cases, be reasonable.”

(Civ. Code, § 3359; see Licudine, at p. 891; Bermudez, supra, 237

Cal.App.4th at p. 1328.) Requiring the plaintiff to prove future

economic losses are reasonably certain “ensures that the jury‟s

fixing of damages is not wholly, and thus impermissibly,

speculative.” (Licudine, at p. 895; see Piscitelli, at p. 989 [“it is

fundamental that „damages which are speculative, remote,

imaginary, contingent, or merely possible cannot serve as a legal

basis for recovery‟”].)

Where, as here, a relatively young plaintiff suffers an

injury that prevents him or her from pursuing a specific career,

“courts have generally required some proof that the plaintiff is

far along in his or her training or experience” to justify future

economic losses. (Licudine, supra, 3 Cal.App.5th at p. 896.)

Moreover, in general “„[t]he longer a proposed front pay period,

the more speculative the damages become.‟” (Peyton v. DiMario

(D.C. Cir. 2002) 287 F.3d 1121, 1128; see Chin et al., Cal. Practice

Guide: Employment Litigation (The Rutter Group 2016) ¶ 17:273,

pp. 17-45 to 17-46 [“[f]ront pay awards for lengthy time periods

may be challenged as being inherently speculative”].)

3. The City Did Not Forfeit the Argument That the

Jury‟s Award of Future Economic Damages Is

Speculative

Plaintiffs contend the City‟s failure to object to Smith‟s

testimony at trial forfeited the City‟s argument that her opinion,

without more, does not constitute substantial evidence of the

plaintiffs‟ future economic damages. The plaintiffs cite two lines

of cases in support of their contention, neither of which stands for

the proposition for which the plaintiffs cite it. The plaintiffs first

60

cite three cases holding that a party‟s failure to object to an

expert‟s testimony at trial forfeits the argument on appeal that

the testimony was inadmissible. (See People v. Bolin (1998) 18

Cal.4th 297, 321 [defendant who failed to object to an expert‟s

qualifications at trial forfeited the argument that expert

testimony was inadmissible because the expert was not

qualified]; In re Estate of Odian (2006) 145 Cal.App.4th 152, 168

[any objection to the admissibility of expert opinion on appeal

was forfeited by failure to object at trial]; People v. Rodriquez

(1969) 274 Cal.App.2d 770, 776 [an appellant cannot challenge an

expert‟s qualifications for the first time on appeal].) These

authorities stand only for the proposition that the City has

forfeited the right to appeal the admissibility of Smith‟s

testimony (an argument the City does not make). They do not

preclude the City from arguing Smith‟s opinion had no

evidentiary support.

The plaintiffs also cite nine cases and two volumes of

Witkin for the proposition that an expert‟s opinion “must be

viewed as substantial evidence supporting the jury‟s verdict” if

the opposing party failed to object to the expert‟s testimony at

trial. That is not the law. The authorities cited by plaintiffs,

including People v. Panah (2005) 35 Cal.4th 395, stand only for

the proposition that expert testimony admitted at trial without

objection is “competent” for purposes of considering on appeal

whether sufficient evidence exists to support a finding. (See id. at

p. 476 [hearsay testimony received without objection “„“takes on

the attributes of competent proof when considered upon the

question of sufficiency of the evidence”‟”]; see also People v. Bailey

(1991) 1 Cal.App.4th 459, 463 [reviewing court may consider

inadmissible evidence introduced without objection at trial in

61

evaluating the sufficiency of evidence on appeal]; In re Tracy Z.

(1987) 195 Cal.App.3d 107, 113 [reviewing court may consider

incompetent evidence admitted without objection in support of a

judgment]; Yule v. Miller (1927) 80 Cal.App. 609, 616 [“[e]vidence

technically incompetent admitted without objection must be

given as much weight in the reviewing court in reviewing the

sufficiency of the evidence as if it were competent,” and citing

similar cases]; 3 Witkin Cal. Evidence (5th ed. 2012) Presentation

at Trial, § 405, p. 561 [incompetent evidence, if received without

objection, “will be considered in support of the judgment”]; 9

Witkin Cal. Procedure (5th ed. 2008) Appeal § 369, p. 427

[same].) Competent evidence is not necessarily substantial

evidence.

4. The Record Does Not Support the Jury‟s

Awards for Future Economic Damages

An expert‟s testimony about a plaintiff‟s earning capacity

must be grounded in reasonable assumptions (Licudine, supra, 3

Cal.App.5th at p. 897), not speculative or conjectural data

(Toscano, supra, 124 Cal.App.4th at p. 696). If the expert‟s

opinion is not based on facts otherwise proved or if the opinion

assumes facts contrary to the evidence, “it cannot rise to the

dignity of substantial evidence.” (Toscano, at p. 696; accord, Wise

v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1191-1192;

see Sargon Enterprises, Inc. v. University of Southern California

(2012) 55 Cal.4th 747, 770 [expert opinion “„may not be based “on

assumptions of fact without evidentiary support”‟”]; Pacific Gas &

Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135

[“[t]he value of opinion evidence rests not in the conclusion

62

reached but in the factors considered and the reasoning

employed”].)

Although Smith opined on the value of the plaintiffs‟ future

economic damages, she provided or cited to no testimony, other

evidence, or opinion on the likelihood that the plaintiffs would

ever receive future earnings from the Department. (See

Licudine, supra, 3 Cal.App.5th at p. 899 [plaintiff introduced no

evidence “establishing a reasonable probability that she could

have become qualified and fitted to earn a lawyer‟s salary”].)

Indeed, absent from the record is any evidence, direct, statistical,

or even anecdotal, of the likelihood that the plaintiffs would

graduate from the Academy, successfully complete their

probation, and serve as police officers until their retirement more

than 25 years later (or, in the case of Lee, ever become a

management analyst or remain in that career until retirement).

(See ibid. [lack of evidence establishing likelihood that plaintiff

would ever become a lawyer made future economic earnings from

becoming a lawyer unreasonably speculative].) Because we

“cannot ascertain with any certainty how [the plaintiff‟s expert]

reached her assumption[s]” (Toscano, supra, 124 Cal.App.4th at

pp. 696-697) regarding the plaintiffs‟ continued employment with

the Department, the award of future economic losses is

speculative. (See Piscitelli, supra, 87 Cal.App.4th at p. 990

[plaintiff‟s claim for lost commissions was speculative as a matter

of law to the extent it was based on an unsupported assumption

that an investment account would increase two-fold over time].)

Giving the plaintiffs the benefit of every inference we can

draw from the evidence, we acknowledge that each plaintiff

testified that he wanted to be a police officer and would have

accepted another position with the City had the City offered one.

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Each of the plaintiffs also testified that he would have stayed

with the Department (though not specifically until retirement)

had the Department not constructively or actually terminated

him. The jury could have inferred from this testimony that the

plaintiffs wanted long careers with the Department.

Nevertheless, given 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. (See Toscano, supra, 124 Cal.App.4th at p. 696

[employee‟s intentions or practices are not relevant to whether he

could expect to remain employed until retirement where

employment was at-will].)

Indeed, it appears highly unusual, though not unheard of,

for a court to award front pay based on a wage differential over

the employee‟s entire working life. (See Horsford v. Board of

Trustees of California State University (2005) 132 Cal.App.4th

359, 388 [“[o]ccasionally, courts have awarded front pay based

upon a wage differential that will persist over the employee‟s

working life”]; see also Chin et al., Cal. Practice Guide:

Employment Litigation, supra, ¶ 17:235, pp. 17-39 to 17-40.)

Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th

976, disapproved on other grounds by Lakin v. Watkins

Associated Industries (1993) 6 Cal.4th 644, 665, was one of those

unusual instances. In Bihun the court held that the record

supported an inference that the plaintiff would have stayed

indefinitely with the defendant employer had she not been

terminated unlawfully. The record in Bihun showed the plaintiff

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had spent eight years with her employer, received nothing but

excellent evaluations, earned her law degree while working for

her employer, chose to stay on the executive track at the company

rather than go into private practice, and would have remained at

the company indefinitely but for the sexual harassment she

experienced. (Bihun, at p. 996.) As the City correctly argues, the

evidence in this record pales in comparison to the type of

evidence in Bihun that supported an inference the plaintiff would

have remained with her employer until she retired had she not

suffered unlawful harassment. (See also Hope v. California

Youth Authority (2005) 134 Cal.App.4th 577, 594 [affirming

award of future earnings losses until retirement for 40-year-old

employee who worked for the State for six years despite severe or

pervasive harassment].)

The plaintiffs‟ expert “simply assumed” the plaintiffs would

have completed their Academy training and probationary period

and remained police officers for over 25 years, without any

evidence of the likelihood that the plaintiffs would successfully

run the table from the Academy to retirement. (See Toscano,

supra, 124 Cal.App.4th at p. 696.) Given the considerable

evidence describing the rigors of the Academy and the fact of the

plaintiffs‟ past injuries (and in some cases multiple past injuries),

Smith‟s assumptions were wholly conjectural. While we

acknowledge that some reasonable assumptions are necessary to

determine front pay, the plaintiffs here failed to provide critical

factual support for their expert‟s assumptions. (See Peyton,

supra, 287 F.3d at p. 1129 [damages award improperly assumed

the plaintiff would have remained with her original employer for

the rest of her career]; Barbour v. Merrill (D.C. Cir. 1995) 48 F.3d

1270, 1279, cert. dism. (1996) 516 U.S. 1155 [“[t]he plaintiff bears

65

the initial burden of providing the [fact finder] „with the essential

data necessary to calculate a reasonably certain front pay

award‟”].)

“An expert‟s opinion is only as good as the facts on which it

is built.” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 253.)

Here, there were no facts on which to build Smith‟s opinion on

future economic damages. Even giving deference to the trial

court‟s ruling denying the City‟s motion for a new trial and

drawing all inferences in favor of it, the evidence is too

speculative to lend support to the award of the plaintiffs‟ future

lost earnings. (See Toscano, supra, 124 Cal.App.4th at pp. 695-

696.) The City is entitled to a new trial on plaintiffs‟ claim for

future economic damages.18

18 The City does not argue it is entitled to judgment on

plaintiff‟s claim for future economic damages because plaintiffs

failed to meet their burden of proving those damages. (Cf.

Licudine, supra, 3 Cal.App.5th at p. 899 [as a general rule, “[a]

party faced with an adverse result may move for judgment

notwithstanding the verdict when, among other things, the

„verdict‟ is „not supported by the facts,‟” and “when the facts are

insufficient and „[w]hen the [nonmoving party] has had full and

fair opportunity to present [her] case, . . . a judgment for [the

moving party] is required and no new trial is ordinarily

allowed‟”].) To the contrary, the City asks that, in the event we

affirm any part of the judgment on liability, we grant the City a

new trial or reduce the award of damages. The City did not move

for judgment notwithstanding the verdict on damages in the trial

court, thus forfeiting the argument it is entitled to judgment on

the claim for future economic damages. (See Lee v. West Kern

Water District (2016) 5 Cal.App.5th 606, 634; Simplon Ballpark,

LLC v. Scull (2015) 235 Cal.App.4th 660, 667-669.)

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DISPOSITION

The judgment is affirmed in part and reversed in part. The

order denying the motion for a new trial is reversed, and the trial

court is directed to enter a new order granting the motion for a

new trial on future economic damages only. The trial court‟s

order awarding plaintiffs their attorneys‟ fees and costs is

vacated. In all other respects, the judgment is affirmed. The

parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

KEENY, J.*

*Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

67