Lui v. City and County Of San Francisco: Court Of Appeal Affirms Finding That Strenuous Field Duties Were An Essential Function Of Police Department's Administrative Positions

In Lui v. City and County of San Francisco (12/11/12) --- Cal.App.4th ---, a police officer who had suffered a major heart attack retired after the SFPD told him it had no positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field, known as the "EJF List" of duties. The officer filed suit for violation of the FEHA (disability discrimination, failure to accommodate, failure to prevent discrimination, retaliation, and refusal to engage in the good faith interactive process). The trial court granted summary adjudication of the retaliation claim and entered judgment on the remaining claims after a bench trial. The officer appealed, arguing that the trial court erred in finding that strenuous field duties are essential functions of the administrative positions he sought.

The Court of Appeal affirmed, holding:

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

Slip op. at 2. 

The Court did not decide who bore the burden of proving the position’s essential functions. "[E]ven if defendant bore the burden of proving the duties in the EJF List are essential functions of the administrative positions plaintiff seeks, the trial court’s findings are supported by substantial evidence...." Slip op. at 11. 

On the critical issue, the Court held as follows:

[T]he evidence shows the duties in the EJF List are essential functions of the administrative positions at issue in the present case because there are a limited number of officers available to the Department to perform those functions. (§ 12926(f)(1)(B).) Because the Department only has a limited number of full duty officers, for each officer in a modified-duty assignment, there is one less officer available to be deployed in an emergency. 

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The evidence further showed that the Department needs to be able to mobilize as many full duty police officers as possible to respond to mass celebrations, demonstrations, and earthquakes and other large-scale emergencies, during which the officers would be required to perform the types of duties listed in the EJF List. 

Slip op. at 13-14. The Court "declined to second-guess" the Department's determination that all officers needed to be able to perform the EJF functions. Slip op. at 17. 

The Court distinguished Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001), on grounds that the defendant there failed to show that the reassignment of a relatively small number of officers to administrative-only assignments would impact its ability to respond to emergencies. Slip op. at 20-23. 

The Court distinguished Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, on grounds that the defendant there "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." Slip op. at 23. 

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. 

Slip op. at 24. 

Finally, the Court found that substantial evidence supported the trial court’s finding that the plaintiff could not perform the duties in the EJF List. Slip op. at 27-28. 

The opinion is available here.