Diversity & Inclusion

Firefighter Gets $1.1 Million for Discrimination

The Second Appellate Division of the California Court of Appeal recently upheld a jury verdict exceeding $1.1 million against the Pasadena Fire Department for subjecting a firefighter to a fitness-for-duty examination and retiring him, failing to provide a reasonable accommodation for his perceived disability, and failing to engage in an interactive process.

Firefighter Loses Racial Harassment Lawsuit . . .

Carter Stephens, an African American, began working as a firefighter for the city in 1985. He complained of repeated harassment by unknown persons who soiled his bed, boots, and uniform with feces, urine, and blood. On one occasion, someone drew a swastika on his firefighter hood. His captains said there was nothing they could do about it, and the harassment continued. One captain openly disparaged African Americans, and Stephens overheard him refer to him as a “nigger” on one occasion. Stephens sued the city in 1998, and the city prevailed.

. . . But Prevails on Second Lawsuit

In June 2002, Stephens fell from a roof while fighting a fire and injured his knees. After undergoing surgery and rehabilitation, his orthopedist reported in September 2003 that his orthopedic condition was permanent and stationary but that Stephens had stated that another doctor didn’t believe he was psychologically ready to return to work. In February 2004, Stephens sought to return to work, but Karen Ezell, the city’s HR director, stated that because of his comment concerning his psychological condition, he needed to undergo a fitness-for-duty examination. In a letter to the psychologist, Ezell stated that Stephens’ statement to his orthopedist, a prior arrest and conviction for misdemeanor vandalism, and “his numerous unfounded discrimination complaints” all caused concern regarding his psychological condition.

In March 2004, Dr. Cathy Goodman, a psychologist, administered tests and interviewed Stephens. Her report stated that he “was quite defensive throughout the interview and was reluctant to disclose information” and that he “appeared very fatigued and dozed off several times during the interview.” Goodman’s report concluded that “Stephens is not recommended as fit for duty for the position of Firefighter II at this time.”

Ezell applied to the California Public Employees’ Retirement System (CalPERS) on April 26, 2004, requesting a disability retirement for Stephens based on the results of the fitness-for-duty examination. CalPERS forwarded the application to the Pasadena Fire and Police Retirement System Board for a decision.

The board conducted several hearings on the application for disability retirement. Stephens provided a letter from a psychiatrist in August 2004 stating that the psychiatrist had been treating him since January 2002 for major depressive disorder, that the condition was in full remission, and that he had no current psychological disability. The city requested a follow-up fitness-for-duty examination with Goodman. Stevens, however, refused to participate. In January 2005, the board found that he was disabled and approved his nonindustrial disability retirement.

Jury Finds in Favor of Firefighter

In November 2006, Stephens filed a lawsuit against the city for employment discrimination based on disability, retaliation, failure to reasonably accommodate him and engage in an interactive process, and wrongful termination in violation of public policy.

The trial court granted the city’s request to exclude evidence of “any matter that might challenge the decision of the Pasadena Fire and Police Retirement System Board to grant a nonindustrial disability retirement to [Stephens].” The court also agreed to exclude any testimony concerning discrimination or retaliation that occurred before November 3, 1998, but ruled that Stephens could testify that he filed five discrimination charges against the city before that date, the city prevailed at trial on some of those charges, and the city allegedly retaliated against him for filing the charges.

The jury found that Stephens was able to perform the essential duties of a firefighter with reasonable accommodation, his perceived mental disability and his prior discrimination charges were motivating reasons for the city’s decision to require him to submit to a fitness-for-duty examination and/or the subsequent application for disability retirement, the city failed to engage in a good-faith interactive process to accommodate his perceived disability, and it failed to provide a reasonable accommodation for his perceived mental disability. The jury awarded Stephens $1,175,847 in damages. The court denied the city’s requests to overturn the jury’s verdict and grant a new trial.

City’s Attempt to Overturn Verdict Unsuccessful

The city made several arguments in an attempt to overturn the jury verdict. It argued for the first time on appeal that because Stephens failed to challenge the board’s decision that he was psychologically unfit for duty as a firefighter, the board’s decision was binding. The appellate court found that the city waived that argument because it actively litigated the issue and submitted it to the jury.

The city also argued that the jury’s findings that the decision to subject Stephens to a fitness-for-duty examination and retire him was discriminatory and/or retaliatory weren’t supported by substantial evidence. The appellate court disagreed. Stephens testified that he experienced several incidents of racial harassment, he complained to his superiors, and he filed several discrimination charges with the U.S. Equal Employment Opportunity Commission. Ezell testified that after receiving Goodman’s report that Stephens was currently unfit for duty, the city didn’t consider any reasonable accommodation but instead applied for a nonindustrial disability retirement. Ezell admitted that “there appear to have been several positions that Mr. Stephens might have been qualified for and could have been accommodated,” but the city failed to advise him of those positions. Thus, the court of appeal found that a jury reasonably could conclude that the city’s decision to order the fitness examination was retaliatory.

The city contended that testimony by psychiatrist Dr. James Rosenberg improperly challenged the board’s decision that Stephens was psychologically unfit for duty. However, Stephens countered that the purpose of the testimony was not to challenge the board’s decision but to show that Goodman had no valid reason to find him unfit for duty. The appellate court found that the trial court didn’t abuse its discretion in admitting Rosenberg’s testimony because Stephens’ fitness for duty as a firefighter with a reasonable accommodation was a disputed issue, and his testimony was relevant to that issue.

The city contended that the award of $595,236 for lost future earnings was excessive because the board’s decision to provide Stephens with a nonindustrial disability retirement conclusively determined that he was entitled to a disability pension only and no future earnings. The appellate court disagreed, reasoning that since the board didn’t consider whether Stephens could perform the essential functions of his job with a reasonable accommodation, its decision wasn’t inconsistent with either the jury’s finding that he was able to perform the essential functions of his job with a reasonable accommodation or the jury’s award of damages for lost future earnings. Stephens v. Pasadena Fire Dept. (California Court of Appeal, Second Appellate District, 3/4/09, unpublished).

Bottom Line

You must engage in a timely, good-faith interactive process with employees to determine what reasonable accommodation may be provided, and you must provide a reasonable accommodation for the known disability of applicants and employees to enable them to perform the essential functions of their jobs.