CASE UPDATES

By: Martin J. Mayer
and
Mervin D. Feinstein

DISABLED INDIVIDUALS THREAT TO HIS/HER OWN HEALTH CANNOT
BE CONSIDERED BY EMPLOYER FOR HIRING PURPOSE

ECHAZABAL v. CHEVRON USA, INC. 2000 Daily Journal D.A.R. 5407

The principal question considered was whether the "direct threat" defense available to employers under the Americans with Disabilities Act applied to employees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace.

Echazabal applied to work directly for Chevron at a location he had been working at for various maintenance contractors for approximately 14 years. After determining that he was qualified for the position, Chevron extended an offer contingent on Echazabal passing a physical examination.

A physical examination conducted by Chevron's regional physician revealed a liver problem. Based on the results, Chevron concluded that Echazabal's liver might be damaged by exposure to the solvents and chemicals present and for that reason rescinded the job offer.

Echazabal continued working at the refinery for a private maintenance contractor and Chevron made no effort to have him removed from his assignment. Echazabal consulted with and was treated by several physicians for active Hepatitis C. The doctors, knowing the type of work he did and the environmental hazards, did not advise him to stop working at the refinery because of his medical condition.

When Echazabal reapplied for employment with Chevron he was again given a conditional job offer and again had the offer withdrawn when Chevron made the determination that his liver would be damaged if he worked at the refinery; thereafter he filed a discrimination suit based on disability. At the trial court level Chevron's motion for summary judgment was granted.

On appeal, Chevron argued that it could defend its decision not to hire Echazabal on the ground that it reasonably concluded that Echazabal would pose a direct threat to his own health if he worked at the refinery. Chevron relied on the "defenses" section of the ADA which provides that an employer may impose, as a qualification standard, "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace."

The United States Court of Appeals Ninth Circuit concluded that the ADA's direct threat defense meant what it said; it permits employers to impose a requirement that employees not pose a significant risk to the health or safety of other individuals in the workplace. The ADA does not permit employers to shut disabled individuals out of jobs on the basis that they may put their own health or safety at risk. "Conscious of the history of paternalistic rules that have often excluded disabled individuals from the workplace, Congress concluded that disabled persons should be afforded the opportunity to decide for themselves what risks to undertake."

/ How does this affect your agency?

This holding reaffirms that when an employee or prospective employee applies for a position the only considerations that can be taken into account under the ADA are, (1) is the individual qualified for the position sought, and (2) does the individual's disability pose a direct threat to the health or safety of other individuals in the workplace. The first is primarily a function of the background investigator and the second that of your medical (physical/psychological) examiner(s). The hiring authority's paternalistic feelings must be left out of the decision making process.

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OFFICER INJURED AT SCENE OF AN EMERGENCY MAY HAVE CAUSE OF
ACTION IF PERSONS PRESENT MISREPRESENT MATERIAL FACTS
CONCERNING NATURE OF THE EMERGENCY

BOON v. RIVERA 2000 Daily Journal D.A.R. 5531

Donald Boon, a Los Angeles police officer, responded to a 9-1-1 call initiated by a representative of Pine Grove Hospital. The emergency call was placed from the Reynaldo residence where Reynaldo had barricaded himself in the house and Boon was the first officer to arrive at the scene. Boon initially encountered a social worker from Pine Grove who advised him that Reynaldo was not violent and that the police were over reacting. Milagro Rivera, Reynaldo's wife, also advised Boon and other officers that Reynaldo was not violent but that she had not taken all the guns from the residence and did not know the type or number of guns still in the house.

Milagro, in fact, knew there was an M-16 rifle and a gun safe in the house and that Reynaldo had threatened to kill the first police officer who arrived at the residence but did not disclose that to the officers. Boon relied on the information that Milagro conveyed to him that Reynaldo was not violent and responded with nonlethal force. Reynaldo pointed a firearm at Boon, fired several shots striking Boon, severely injuring him, and then surrendered.

Boon brought suit against Reynaldo Rivera, his wife Milagro, and Pinegrove Hospital asserting various tort theories. The trial court sustained Milagro's demurrer and signed an order dismissing the case as to Milagro on the ground the "firefighter's rule" barred the action against Milagro.

The California Court of Appeal Second Appellate District reversed, noting that the rule was marked with exceptions and a public safety officer does not assume every risk. The court, quoting the California Supreme Court in Neighbarger v. Irwin Industries, Inc. 8 Cal.4th 532 (1994) stated, "The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene."

The Court held that a duty of care is owed by persons to public safety officers. Civil Code section 1714.9 imposes a duty on those present at the scene of an emergency to refrain from misstating material facts concerning the nature of the emergency to those public safety officials present. The California Supreme Court, in Lipson v. Superior Court, 31 Cal.3rd 362 (1982), stated "the principle of assumption of risk, which forms the theoretical basis for the fireman's rule, is not applicable where a fireman's injuries are proximately caused by his being misled as to the nature of the danger to be confronted."

/ How does this affect your agency?

While officers may proceed against those who knowingly misrepresent material facts regarding emergency situations, where the misrepresentation causes injury, this case may also present the employing governmental entity with a cause of action to recover it's costs. Department's should explore this possibility with their legal advisors.

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CONTENTS OF A POLICE EVIDENCE LOCKER ARE THE
RESPONSIBILITY OF THE DISTRICT ATTORNEY

WALTERS, et al. v. SUPERIOR COURT (Ubina, et al.) 2000 Daily Journal D.A.R. 5259

The Police Chief of Santa Ana petitioned review of an ex parte confidential order issued by the supervising criminal courts judge permitting pretrial defense inspection and testing of a firearm booked into evidence in a murder case. The order was issued without notice to the Orange County District Attorney or the City Attorney of Santa Ana. It directed the police department to allow a defense expert to perform a ballistics test in the department's laboratory. The court further ordered the department not to advise anyone, except the defense, of the testing or the name of the party doing the testing until the preliminary hearing. The City Attorney's application to vacate the order or lift the gag order to permit notification of the District Attorney was denied.

The California Court of Appeal Fourth Appellate District held such an order was unauthorized and in violation of Penal Code section 1054.5 and issued a preemptory writ. The Court noted that before trial, physical evidence collected by the prosecution or the defense does not "belong" to the court, even where the defense turns it over directly to a judge or preliminary hearing magistrate. Additionally the court noted that the contents of a police evidence locker are the responsibility of the district attorney, and is not property in possession of some third party. Citing Brady v. Maryland, 373 U.S. 83 (1963), the court pointed out that it is the prosecutions obligation to provide all exculpatory evidence to the defense.

/ How does this affect your agency?

Discovery orders served on your department, where the District Attorney and/or City Attorney has not been named, should be immediately brought to the attention of either and/or both. Departments should review their policy regarding the release of property in criminal prosecutions with their legal advisor to ensure the people's due process rights are protected.

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"REASONABLE ACCOMMODATION" REQUIRES EMPLOYER TO OFFER
DISABLED EMPLOYEE AN AVAILABLE LESS DEMANDING POSITION

SPITZER v. The Good Guys, Inc. et al. 2000 Daily Journal D.A.R. 5597

Susan Spitzer started as a sales manager in training and within three years became the manager at one of the company's largest stores. Spitzer had been diagnosed with a degenerative disc disease which caused her to suffer serious chronic back pain and was treated with physical therapy and medication.

Spitzer repeatedly informed management personnel she "needed accommodation due to my back disability" and had three formal discussions with the employer's vice president of human relations regarding her interest in reassignment. Spitzer advised her employer that she would require back surgery if she didn't get off her feet on a more permanent basis and was advised she "should just hang in there and keep trying and that something might come up."

Subsequently Spitzer attempted to obtain several specific positions that would have allowed her to get off her feet but was informed that one job had been "put on hold" and she was rejected for two others. Although Spitzer was qualified for several available positions she was not informed of the existence of any of those positions.

The employer contended that it reasonably accommodated Spitzer's disability by restructuring her job so that she was permitted medical leave, periodic breaks prescribed by her physician, the right to leave work early for physical therapy, relief from some of the requirements imposed on store managers and was allowed to use a chair on the sales floor. Spitzer contended that her employer was fully aware of the failure of the restructuring of her job to accommodate her back problem and knew, or should have known, that her limitations could only be satisfactorily accommodated by reassigning her to a more sedentary position but failed to do so even though there were suitable vacant positions for which she was qualified.

The California Court of Appeal First Appellate District found conflicts in the evidence as to whether the employer provided a reasonable accommodation and reversed the trial court's grant of summary judgment for the employer. Citing several cases, the court noted that reasonable accommodation envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions.

The court concluded that, because there were triable issues of fact as to whether the employer knew it had not reasonably accommodated Spitzer's limitations and whether suitable positions to which she could have been reassigned were available, the grant of summary judgment regarding Spitzer's discrimination cause of action was in error.

/ How does this affect your agency?

This case points out that it is not enough to modify a disabled employees current assignment and assume the accommodation has been reasonable. An employer has an obligation to work with the employee to insure that the action taken has, in fact, accommodated the disability. Where suitable positions are available it is the employers responsibility to bring those to the attention of the disabled employee. Lastly there should always be coordination with the employee's treating physician concerning the accommodation.

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HOSTILE WORK ENVIRONMENT CLAIM IS NOT SUPPORTED WHERE
THERE IS A SINGLE INCIDENT OF SEXUAL HARASSMENT AND
HARASSER HAS BEEN REMOVED FROM WORK SITE

Brooks v. City of San Mateo (Police Department) 2000 Daily Journal D.A.R. 5894

Patricia Brooks, a telephone dispatcher, and her coworker, senior dispatcher Steven Selvaggio, staffed the city's communications center, on the evening shift. During the evening, Selvaggio approached Brooks as she was taking a call and placed his hand on her stomach, commenting on its softness and sexiness. Brooks told Selvaggio to stop touching her and then forcefully pushed him away. Later Selvaggio positioned himself behind Brook's chair, boxing her in against the communications console as she was taking another 9-1-1 call and forced his hand underneath her sweater and bra to fondle her bare breast. After terminating the call, Brooks removed Selvaggio's hand and informed him that he had "crossed the line." Selvaggio then approached Brooks as if he would fondle her breasts again, however another dispatcher arrived and Selvaggio ceased his behavior.

Brooks immediately reported the incident and the following day the city placed Selvaggio on administrative leave pending the investigation. During the investigation it came to light that this was not the first time Selvaggio had made improper advances to co-workers. At least two other female employees had been subjected to similar treatment from Selvaggio, however they had not reported his misconduct.

Selvaggio denied any misconduct. The investigation concluded that Brook's version of events was accurate and Selvaggio resigned after the city initiated termination proceedings against him. Selvaggio later pled no contest to misdemeanor sexual assault charges and spent 120 days in jail.

Brooks had trouble dealing with the incident and took a leave of absence immediately afterward and began seeing a psychologist. Six months later Brooks returned to work and perceived her work environment to be dramatically changed; male employees ostracized her and supervisors mistreated her. Brooks submitted a written appeal to what she perceived to be an unwarranted negative performance evaluation intended to retaliate against her for complaining about Selvaggio's behavior.

Brooks left work, never returned and sued for sexual harassment and retaliatory discrimination.

The district court held Selvaggio's assault of Brooks was not severe enough to give rise to a hostile work environment claim, and that she failed to show that she had suffered any adverse employment consequences. The district court granted the city's summary judgment motion.

The United States Court of Appeals Ninth Circuit affirmed noting that in order to prevail on her hostile work environment claim Brooks had to show that her "workplace [was] permeated with discriminatory intimidation ... that it [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Although Brooks alleged sufficient facts to support the subjective portion of her hostile work environment claim, she could not rely on Selvaggio's misconduct with other female employees because she did not know about it at the time of Selvaggio's attack. Harassment directed towards others, of which an employee is unaware, can have no bearing on whether she reasonably considered her working environment abusive. This is especially true where the harassment comes from an individual who is terminated as soon as his misdeeds come to light.

The court also noted that because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action.

/ How does this affect your agency?

This case once again upholds the principal that where an employer takes swift and affirmative action when it becomes aware of egregious conduct, immediately removes the offender from the work site, conducts a reasonable and thorough investigation, and imposes appropriate discipline, no liability will attach.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel or your police legal advisor. If you have any questions regarding any of the above please do not hesitate to call us at (562) 590-8280.