RYAN ATKINS et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.
No. B257890
Second Dist., Div. Seven
Feb. 14, 2017
8 Cal. App. 5th 696
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.
OPINION
SEGAL, J.—
INTRODUCTION
A jury found that the City of Los Angeles (City) violated the rights of five recruit officers of the Los Angeles Police Department (Department) under the California Fair Employment and Housing Act (FEHA) when the Department terminated or constructively discharged them from the police academy (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 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 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 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 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 plaintiffs by making their temporary light-duty positions permanent or by transferring them to another job with the City. With respect to plaintiffs’ claim for failure to engage in the interactive process, the City argues that because there were no open positions available for plaintiffs, the City did not have to continue the required interactive process.
We agree that 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
The City also challenges the jury‘s award of future economic damages as speculative and excessive. Despite the fact that 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. 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 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.
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 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
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 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
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 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 record does not reflect whether 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.
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
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 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. 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 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.
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. Sometime 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 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 timesheets. 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
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” 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
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 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
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 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 e-mail 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
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 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 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 Plaintiffs eventually dismissed Beck with prejudice.
Trial began April 21, 2014. At the close of plaintiffs’ case, the City brought a motion for nonsuit on the ground that 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 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 ongoing” from the time plaintiffs suffered their injuries through their assignments to the Recycle program.3
The jury ultimately found in favor of plaintiffs on all three causes of action and awarded each plaintiff past and future economic and noneconomic losses. In total, the jury awarded 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. 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 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 (Nealy); see Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 970 (Lui).) “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 plaintiffs’ discrimination claim, the City argues that plaintiffs failed to show a prima facie case of discrimination because they could not
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 Electric 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 (Cuiellette).)
“‘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 (Jenkins).) “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.)
B. Substantial Evidence Does Not Support the Jury‘s Verdict That the City Discriminated Against Plaintiffs
FEHA makes it unlawful for an employer to discriminate against an employee because of the employee‘s physical disability. (
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 Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292] (Furtado); 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.” (
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. Plaintiffs’ argument improperly conflates the legal standards for their claim under
The question whether plaintiffs could perform the essential functions of a position to which they sought reassignment is relevant to a claim for failure to accommodate under
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
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 plaintiffs’ separations from the Department stated that officers “must be in excellent health, 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.” (
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 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
The City‘s evidence showed that the essential functions of a police officer or recruit included demanding physical tasks. Plaintiffs did not introduce any evidence to the contrary.
2. Undisputed Evidence Shows Plaintiffs Could Not Perform the Essential Functions of a Police Recruit Even with a Reasonable Accommodation
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 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, 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
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 [83 Cal.Rptr.3d 190] (Nadaf-Rahrov).) 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
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 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, plaintiffs failed to show that they were “qualified individuals” under FEHA by showing that they 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 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
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 [93 Cal.Rptr.3d 338].) Specifically,
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
” ’ “[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
Like a claim for discrimination under
The duty to reasonably accommodate a disabled employee is a continuing one that is not exhausted by one effort. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 [181 Cal.Rptr.3d 553] (Swanson).) “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 [100 Cal.Rptr.3d 449].)
2. An Employer‘s Duties Under FEHA, Including the Duty To Provide Reassignment as a Reasonable Accommodation, Extends to Probationary or “Preprobationary” Employees
FEHA requires reassignment as a reasonable accommodation for employees, but not applicants. (See
The City argues that FEHA did not require it to accommodate plaintiffs by reassigning them to another position because, as “preprobationary” employees who never completed their Academy training or probationary field assignments, 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 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 “preprobationary,” probationary, or other employees in training ineligible for reassignment where such an accommodation is otherwise reasonable.
a. FEHA applies to probationary and so-called “preprobationary” employees
In Hastings, supra, 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. (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 Hastings, at pp. 976–977.)
We acknowledge that the plaintiff in Swanson, unlike 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 [128 Cal.Rptr.3d 869] [” ’ “[u]nder the standard rules of statutory 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 [65 Cal.Rptr.3d 251] [“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;
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 [122 Cal.Rptr.3d 799].) FEHA nevertheless prohibits unlawful discrimination
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 plaintiffs qualify for reassignment is the position of a police officer, not a police recruit. According to the City, because 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 obligations regarding reasonable accommodation” under the federal Americans with Disabilities Act of 1990 (ADA;
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.” (EEOC Guidance, supra, § 25, 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 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, No. C 10-01830 EDL) 2012 WL 423732 (O‘Brien), 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
The facts in O‘Brien were similar to those in Quinn, 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. (Quinn, at p. 475Id., at p. 476Id., 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. 477Ibid.) 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” (Quinn, at p. 482) showed the plaintiff “was never initially qualified for the position from which he was discharged” (id., at
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 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 “preprobationary” 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 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 plaintiffs adequately performed the duties of a police recruit makes reassignment a “reasonable” accommodation. (See EEOC Guidance, supra, § 25.) Whether reassigning plaintiffs to another position was “reasonable” is a question of fact for the 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 [87 Cal.Rptr.2d 487].)10
The City argues that FEHA did not require it to reassign plaintiffs to other positions with the City or to the Recycle program until plaintiffs healed or their disabilities became permanent. We conclude that reassignment to the Recycle program until plaintiffs recovered or became permanently disabled was not unreasonable under the facts of this case and that substantial evidence supports the jury‘s verdict that 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 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 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
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 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.’ ” (Id., 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
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.” (Id., at p. 983.)
This case is more like Cuiellette than Raine and Lui. As in Cuiellette, the Department had a long-standing 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 plaintiffs became injured and entered the Recycle program. While FEHA does not require the Department to accommodate recruit officers injured after the change in policy by allowing them to remain in the Recycle program indefinitely, the City could not treat 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 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 [35 Cal.Rptr.3d 837] [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 US Airways, Inc. v. Barnett (2002) 535 U.S. 391, 405–406 [152 L.Ed.2d 589, 122 S.Ct. 1516] [an unreasonable accommodation may become reasonable in light of an employer‘s policy or even exceptions to that policy].)12
b. Plaintiffs were qualified for and capable of performing the essential functions of an assignment to the Recycle program
At trial 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 plaintiffs spent a considerable time performing these duties. The City never contested plaintiffs’ abilities to perform the jobs assigned to them in the Recycle program, nor did the City contend that 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 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].)
4. The City Failed To Demonstrate That Assigning 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 plaintiffs and similarly situated recruits would have caused the City undue hardship.
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
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 Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 [126 Cal.Rptr.3d 301].) 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 [159 Cal.Rptr.3d 832]; accord, Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [201 Cal.Rptr.3d 268]; Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390 [190 Cal.Rptr.3d 13]; see In re R.V. (2015) 61 Cal.4th 181, 201 [187 Cal.Rptr.3d 882, 349 P.3d 68] [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 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 [113 Cal.Rptr.3d 356].)
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 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.
While this testimony ostensibly tied the economic cost of assigning 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.” (
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 plaintiffs were “trainees who had completed only 8 hours to 18 weeks of training” and the awards assume plaintiffs would have 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 plaintiffs would be “reasonably certain to lose in the future as a result of the injury.” Plaintiffs introduced evidence of such losses through the testimony of an expert witness, Karen Smith. For all of the plaintiffs except Lee, Smith assumed plaintiffs eventually would have returned to the Academy, completed 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
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 to 33 years, earning promotions along the way, and then received retirement income and benefits. Smith subtracted from these future earnings as mitigation the amounts 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. 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 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 [plaintiffs are] actually going to work” for the Department, or at all, for all of the years included in her estimates.
Collectively, the jury awarded 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
” ‘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 [188 Cal.Rptr.3d 820] (Bermudez); 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., supra, 1 Cal.App.5th at p. 602; see Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 986 [159 Cal.Rptr.3d 204]; see also Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 511 [15 Cal.Rptr. 161, 364 P.2d 337] (dis. opn. of Traynor, J.) [” ‘to 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 Pacific Co. (1911) 160 Cal. 237, 255 [116 P. 513].)
A damage award must not be ” ‘speculative, remote, imaginary, contingent, or merely possible.’ ” (Estate of Kampen (2011) 201 Cal.App.4th 971, 991 [133 Cal.Rptr.3d 410]; see Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 694 [21 Cal.Rptr.3d 732] (Toscano); Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989 [105 Cal.Rptr.2d 88] (Piscitelli); see also Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 602 [207 Cal.Rptr.3d 712] [“[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 [208 Cal.Rptr.3d 170] (Licudine) [“the jury must fix a plaintiff‘s future earning capacity based on what it is ‘reasonably probable’ she could have earned“].) Indeed, “damages must, in all cases, be reasonable.” (
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 plaintiffs’ future economic damages. Plaintiffs cite two lines of cases in support of their contention, neither of which stands for the proposition for which plaintiffs cite it. Plaintiffs first 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 [75 Cal.Rptr.2d 412, 956 P.2d 374] [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 [51 Cal.Rptr.3d 390] [any objection to the admissibility of expert opinion on appeal was forfeited by failure to object at trial]; People v. Rodriguez (1969) 274 Cal.App.2d 770, 776 [79 Cal.Rptr. 240] [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 [25 Cal.Rptr.3d 672, 107 P.3d 790], 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 [2 Cal.Rptr.2d 204] [reviewing court may consider inadmissible evidence introduced without objection at trial in evaluating the sufficiency of evidence on appeal]; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 [240 Cal.Rptr. 445] [reviewing court may consider incompetent evidence admitted without objection in support of a judgment]; Yule v. Miller (1927) 80 Cal.App. 609, 616 [252 P. 733] [“[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 [164 Cal.Rptr.3d 54]; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 [149 Cal.Rptr.3d 614, 288 P.3d 1237] [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 [234 Cal.Rptr. 630] [“[t]he value of opinion evidence rests not in the conclusion 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 receive future earnings from the Department until retirement. (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
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. 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 [33 Cal.Rptr.3d 644] [“[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 [16 Cal.Rptr.2d 787], disapproved on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 665 [25 Cal.Rptr.2d 109, 863 P.2d 179], 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 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
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) 310 U.S. App.D.C. 419 [48 F.3d 1270, 1279], cert. den. (1996) 516 U.S. 1155 [134 L.Ed.2d 113, 116 S.Ct. 1037] [“[t]he plaintiff bears 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 [192 Cal.Rptr.3d 346].) Here, there were no facts on which to build Smith‘s opinion that the plaintiffs were entitled to recover future economic damages to retirement. 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 until retirement. (See Toscano, supra, 124 Cal.App.4th at pp. 695-696.)
The City does not genuinely dispute that the plaintiffs are entitled to a reasonable, nonspeculative award of future economic damages. The City‘s argument is that (assuming liability) the plaintiffs are not entitled to recover future lost earnings until retirement, not that they are not entitled to recover any future lost earnings at all. Although there is evidence in the record from which the jury could have calculated a reasonable amount of future economic damages, it is not our role to say what that amount should be. ” ‘The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.’ ” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533 [123 Cal.Rptr.3d 97]; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [71 Cal.Rptr.3d 775] [remanding
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.
Perluss, P. J., and Keeny, J.,* concurred.
A petition for a rehearing was denied March 13, 2017, and the opinion was modified to read as printed above.