CASE UPDATES

By: Martin J. Mayer

EMPLOYER MAY REQUIRE MEDICAL RELEASE PRIOR TO ALLOWING EMPLOYEE TO RETURN WORK

Harris v. Harris & Hart, Inc., 2000 Daily Journal D.A.R. 2689

Roosevelt Harris sued his employer alleging that his rights under the Americans with Disabilities Act (ADA) were violated when he was required to provide a medical release before returning to work as a sheet metal worker. The employer, Harris & Hart, hires journeymen from a union hall on a project-by-project basis. Harris worked for Harris & Hart on two separate occasions. During his second stint, Harris informed his employer that he suffered from carpal tunnel syndrome. He also filed a grievance for failure to accommodate his disability. Prior to hiring Harris a third time, Harris & Hart required Harris to obtain medical clearance from his doctor. Harris sued under the ADA for disability discrimination.

The trial court granted the employer's motion for summary judgment on the ground that its unwillingness to rehire Roosevelt Harris without a medical release did not violate the ADA. The Ninth Circuit Court of Appeals affirmed, finding that the only issue was whether Harris & Hart's refusal to rehire Harris, a prior employee with a known disability, without a medical release constituted an illegal pre-offer medical inquiry under the ADA. According to the Ninth Circuit, it did not. "An employer does not violate § 12112(d)(2) of the ADA by requiring a former employee with a recent known disability applying for re-employment to provide medical certification as to ability to work with or without reasonable accommodation, and as to the type of any reasonable accommodation necessary, as long as it is relevant to the assessment of ability to perform essential job functions."

Also, the Ninth Circuit stated: "We agree that this case is similar to that of an employee returning from disability leave. It appears that neither Congress nor the EEOC took into account the case of a returning employee, when formulating the restrictions on pre-offer inquiries. Here, as in the case of the returning employee, the employer must be able to assess the extent of the applicant's recovery from inability to perform. Further, if accommodations are necessary to enable job performance, the employer, who is already familiar with the disability, must learn of those accommodations in order to have any realistic chance of assessing the ability to perform."

/ How does this impact your department?

This case reaffirms your ability to require medical clearance prior to permitting injured employees to return to duty. Background investigators should also be aware of this case inasmuch as it relates to former employees seeking to be re-employed having previously suffered a disability.

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VEHICLE CODE IMMUNIZES OFFICER EVEN WHEN PURSUIT IS WITHOUT LIGHTS & SIREN

Cruz, et al. v. Briseno, et al., 2000 Daily Journal D.A.R. 3107

Plaintiffs sued the County of Los Angeles and a Sheriff's deputy for wrongful death and personal injury arising out of an automobile accident that occurred when a vehicle that the deputy was pursuing ran a red light and collided with plaintiff's vehicle. The deputy had not activated his lights and sirens. The key issue in the case was whether the deputy's alleged negligence in failing to activate his lights and sirens resulted in the forfeiture of his immunity under Vehicle Code § 17004 and 17004.7.

The California Supreme Court, reversing the Court of Appeal, held that the deputy did not forfeit his immunity by failing to activate lights and sirens. The issue of the County's potential liability was not decided although the Supreme Court's earlier decision in Brummett v. County of Sacramento, 21 Cal.3d 880 (1978), suggests that while individual officers may be immune from liability, the employing agency may nonetheless be subject to potential liability.

/ How does this impact your department?

California Vehicle Code § 17004 immunizes individual officers from liability irrespective of their alleged negligence. The employing agency, however, remains subject to potential liability. Agencies should therefore continue enforcing their pursuit policies as before.

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DEPUTY NOT POLICYMAKER FOR PURPOSE OF POLITICAL LOYALTY AS A REQUIREMENT FOR EMPLOYMENT

DiRuzza v. County of Tehama, Sheriff Robert Heard and Undersheriff Jerry Floyd 2000 Daily Journal D.A.R. 3023

Sherol DiRuzza was a deputy sheriff in Tehama County from 1992 to 1995. In 1994, DiRuzza supported incumbent Sheriff Mike Blanusa in his unsuccessful bid for reelection. DiRuzza subsequently brought an action asserting that newly elected Sheriff Robert Heard and Undersheriff Jerry Floyd forced her out of her job by retaliating against her for her political support of Blanusa. DiRuzza alleged that her constructive discharge violated her First Amendment rights.

Note: Prior to Heard's assuming office, DiRuzza had discharged her service revolver out of her bedroom window during a dispute with her fiancee. Blanusa had suspended DiRuzza for 30 days. The district attorney charged DiRuzza with violating Penal Code § 246.3 and 417(a)(2). After Heard assumed office, DiRuzza was allowed to plead guilty to the lesser infraction of disturbing the peace, but only on condition that she resign her position as deputy sheriff.

The district court held that DiRuzza could be fired because of her public support for Blanusa. According to the District Court, deputy sheriffs are policymakers and political loyalty to the sheriff is an appropriate job requirement. The district court held that assuming that the defendants had retaliated against DiRuzza they were entitled to do so.

The Ninth Circuit Court of Appeals reversed holding that the defendants failed to show that DiRuzza was a policymaker. The Ninth Circuit further held that the law protecting non-policymaking public employees from retaliation for the exercise of their First Amendment rights was clearly established in 1993. Thus, Heard and Floyd had not established that they were entitled to qualified immunity because, assuming that they had retaliated against DiRuzza, a reasonable official would have known it was improper to do so.

/ How does this impact your department?

Non-policymaking employees may not be terminated or disciplined as a result of their political support for a department head's political opponents. Even where there is good cause for termination or discipline, as in DiRuzza's case, particular care should be exercised when there may be the mere perception that there is a retaliatory motive.

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OFFICER HAS DUTY OF CARE TO VEHICLES PASSENGERS DURING TRAFFIC STOP

Lugtu, et al. v. California Highway Patrol, et al., 2000 Daily Journal D.A.R. 3169

A CHP motorcycle officer stopped plaintiffs' vehicle in the median area of Highway 78 to issue a citation for excessive speed. The vehicle was occupied by the four people. As the officer was returning to his motorcycle after issuing the citation a truck veered into the median area and struck the rear of Lugtu's vehicle severely injuring the three passengers.

In the ensuing civil action, the trial court granted summary judgment for the officer and State concluding that the officer did not owe a duty of reasonable care to the passengers.

The Court of Appeal reversed, holding that an officer has a duty of reasonable care to passengers in a vehicle stopped for a traffic violation. The Court of Appeal found that it was reasonably foreseeable that a car in the fast lane would veer into the median area striking a car stopped in that area.

/ How does this impact your department?

The court expressed the view that the imposition of a duty of care in these circumstances would encourage officers to exercise reasonable care in stopping vehicles for traffic violations. Training bulletins and shift briefings should revisit stopped motorist safety issues and emphasize location, location, location for traffic stops, especially in areas of high volume and/or high speed traffic.