The First District Court of Appeal ruled in favor of the San Francisco Police Department in a FEHA case brought by police officer Kenneth Lui who sued SFPD alleging disability discrimination. Lui suffered a heart attack and then worked for a year in a temporary modified duty (TMD) position in the records room. Lui’s physician said that Lui had coronary artery disease and Lui’s duties “should not include physically strenuous work.”
Lui wanted to make his TMD job permanent but SFPD refused arguing that all police officers must be able to perform the essential duties of the job, or as SFPD refers to it, the “Essential Job Functions” (EJF). The EJF for police officers include “physically strenuous tasks, such as making forcible arrests, pursuing fleeing suspects, and responding to emergency situations.”
Lui sued SFPD arguing that the EJF for police officers should not apply to the TMD position Lui had or other administrative positions. SFPD responded by arguing that all police officers, including those in administrative positions, must be able to be deployed in emergency situations so the EJF does apply to those officers in administrative positions. SFPD used examples of natural disasters like earthquakes and mass demonstrations.
The case for SFPD is different than other police departments, because the SFPD, acting in cahoots with the San Francisco Police Officer’s Association (POA), eliminated all permanent light-duty assignments and limited TMD assignments to only one year. At the end of the TMD duty, the officer can return to full duty if able, request a disability accommodation, seek disability retirement, seek an unpaid leave of absence or use sick or family medical leave.
Other police departments have permanent light-duty positions. Had that been the case here, Lui could have prevailed. But that wasn’t the case here and Lui lost.
Lui v. City and County of San Francisco, 2012 WL 6197419, ___Cal.App.4th_____ (2012).