Atkins v. City of Los Angeles (8 Cal. App. 5th 696, 2017)

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 administrative assignments was not unreasonable as a matter of law in light of the City’s past policy and practice of doing so. Because we affirm the City’s liability on this basis, we do not reach the City’s challenge to the verdict on plaintiffs’ claim for failure to engage in the interactive process.

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 physical fitness examination that included a mile and a half run and an obstacle course. Recruits who could not pass this examination were “recommended for termination from the Department.” When plaintiffs joined the Academy, they signed a physical condition disclosure form stating that they were “physically qualified and have no pre-existing physical limitations that would prohibit [them] from fully participating in all aspects of the Academy recruit physical conditioning and self-defense training program.”

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 Penal Code section 832.4 and regulations issued by the Commission on Peace Officer Standards and Training (POST), the agency that oversees police officer training statewide. Those provisions require recruits to complete their training and 12-month probationary period within two years. (See Pen. Code, § 832.4; Cal. Code Regs., tit. 11, § 1012.) The Department referred to this requirement as the “two-year rule.”

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 residents of Los Angeles. Thus, rather than swearing in new recruits on their first day at the Academy, the Department sought to delay the swearing-in date until graduation from the Academy. This change apparently required the agreement of the Los Angeles Police Protective League, the union that represents City police officers. Following a lengthy meet-and-confer process with the Police Protective League, the Department and the Police Protective League signed a memorandum of understanding dated November 5, 2008 stating in part: “The Department shall not be required to administer the loyalty oath required by state law and municipal ordinance to recruit officers on the first day of employment. The actual timing and procedure for the swearing in of recruit officers shall be at the discretion of the Department.”

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 them out on the street where they can help public safety.” In 2012 the Department ended the Recycle program entirely.

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.

Lieutenant Palmer then asked Atkins if he thought he could return to the Academy, and Atkins said he thought he could. Lieutenant Palmer told Atkins that if his doctor cleared him to return to the Academy the Department would reinstate him that day; otherwise he would have to resign or the Department would terminate him.

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 equipment. On that day Sergeant Krish met Boss outside Lieutenant Palmer’s office and told him, “Just so you know, Boss, you’re to resign today or you’re going to be terminated. And if we terminate you, you will never work in law enforcement again, anywhere.” Once inside Lieutenant Palmer’s office, Lieutenant Palmer told Boss that he had been in the Recycle program for seven months, which “exceeded [his] time limit.” Lieutenant Palmer said, “you either resign or I fire you.” Boss explained to Lieutenant Palmer that he could not resign because he would not qualify for unemployment benefits, which he needed for his medical expenses. Boss said Lieutenant Palmer then told Sergeant Krish to “put [Boss] at home pending termination.” Boss asked if there were any other jobs he could do, but Lieutenant Palmer said, “There’s no City jobs for you.” On November 24, 2009 Boss met with Captain Veenstra, who presented him with termination papers.

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 Krish called Desmond and asked if he was ready to resign. When Desmond refused, he said Sergeant Krish told him that “if I wanted to play hardball, she would see to it that I never got a job in the City or law enforcement” again. In March 2010 Desmond again told Sergeant Krish that he would not resign, and the Department officially terminated his employment on March 24, 2010.

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 could “civilianize” through a “program called 1014.” When Orea reported for duty to the program, Fein asked him about his education and work experience and assigned him to work in the POST office where he filed documents, made phone calls, and updated computer files. Orea said that the position violated his medical restrictions because he had to park a long distance from the office, walk down a hill to get there, and walk up five flights of stairs to get into the building and office. Upon informing Fein of these concerns, Orea said Fein told him, “Too bad, that’s your assignment.” Orea’s doctor eventually removed his work authorization, and the Department assigned Orea to his home.

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 specialist in the coming months and asked him to keep in touch and let her know if he had any questions. The e-mail she sent him also included a link to information about upcoming civil service examinations. Orea said he looked at the e-mail Baylosis sent him and thanked her for the information. Orea did not say whether he ever investigated any of the job openings listed on the website identified in Baylosis’s e-mail or the possibility of taking a civil service exam.

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. 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.

The trial court denied the motion to allow the jury to determine whether the City unlawfully denied plaintiffs the same benefits that other recruits had received in the Recycle program and under City Charter section 1014. With respect to plaintiffs’ claim for failure to engage in the interactive process, the court said the scope of actions the City should or could have taken was a factual issue for the jury. “[Rjecognizing it’s a close call,” the court denied the City’s motion.

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 [184 Cal.Rptr.3d 9] (Nealy); see Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 970 [150 Cal.Rptr.3d 385] (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 [118 Cal.Rptr.3d 34].)

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 perform the essential functions of a police recruit even with reasonable accommodations. In connection with plaintiffs’ claim for failing to make reasonable accommodations, the City argues that FEHA does not entitle what the City calls “pre-probationary trainees” like plaintiffs to reasonable accommodations, and, even if it did, plaintiffs failed to show that there was a reasonable accommodation available for them. According to the City, this failure also dooms plaintiffs’ claim for failure to engage in the interactive process. Finally, the City challenges the award of damages as “astonishing” and the award of attorneys’ fees as excessive.

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 [202 Cal.Rptr.3d 460, 370 P.3d 1022]; see Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396 [207 Cal.Rptr.3d 586].) “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 [123 Cal.Rptr.3d 562] (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 [41 Cal.Rptr.3d 686] (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. (Gov. Code, § 12940, subd. (a); Green v. State of California (2007) 42 Cal.4th 254, 262 [64 Cal.Rptr.3d 390, 165 P.3d 118] (Green).) The City does not contest, and we therefore assume for purposes of this appeal, that plaintiffs’ temporary injuries constituted “physical disabilities” under FEHA. (See § 12926, subd. (m).) Thus, we do not address the argument by amici curiae that FEHA does not apply to such temporary disabilities “with absolutely no long-term or permanent impact.” (See Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 572 [131 Cal.Rptr.3d 382] [“[a]n amicus curiae ordinarily must limit its argument to the issues raised by the parties on appeal, and a reviewing court need not address additional arguments raised by an amicus curiae”]; Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 95, fn. 13 [133 Cal.Rptr.3d 155] [“[generally, ‘an amicus curiae accepts a case as he or she finds it,’ ” and “ ‘ “ ‘additional questions presented ... by an anticus curiae will not be considered’ ” ’ ”].)

Section 12940 specifically limits the reach of FEHA by “ ‘excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.’ ” (Cuiellette, supra, 194 Cal.App.4th at p. 766; accord, Green, supra, 42 Cal.4th at p. 262.) Section 12940, subdivision (a)(1), provides: “This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”

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.” (§ 12926, subd. (1).) The City argues that, because the City hired plaintiffs as recruit officers, they must show they were able to perform the essential functions of a police recruit in order to be qualified individuals entitled to protection under FEHA. The City argues that plaintiffs cannot satisfy their burden of proof under FEHA because they failed to show that they could perform those essential functions.

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 section 12940, subdivision (a), for discrimination, and their claim under section 12940, subdivision (m), for failure to make reasonable accommodation, including reassignment. In connection with a discrimination claim under section 12940, subdivision (a), the court considers whether a plaintiff could perform the essential functions of the job held—or for job applicants, the job desired—with or without reasonable accommodation. (See Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 971 [2 Cal.Rptr.3d 329] (Hastings) [to establish a FEHA claim for discrimination “the plaintiff must prove he is qualified for the position for which an accommodation is sought,” not for another position requested as a reassignment]; see also Furtado, supra, 212 Cal.App.4th at p. 755 [distinguishing in the context of a failure to accommodate claim between the showing FEHA requires of “those seeking a position and those already in the position”].)

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 section 12940, subdivision (m), and to a claim for failure to engage in the interactive process under section 12940, subdivision (n). (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223 [37 Cal.Rptr.3d 899] (Raine) [reassignment may be required where “the employee cannot be accommodated in his or her existing position”]; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [96 Cal.Rptr.2d 236] (Spitzer) [an employer generally has a duty under FEHA to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job]; Cal. Code Regs., tit. 2, § 11068, subd. (d)(1)(A) [reassignment may be a reasonable accommodation where “the employee can no longer perform the essential functions of his or her own position even with accommodation”]). Thus, for plaintiffs’ discrimination claim, the issue is whether plaintiffs could perform the essential functions of a police recruit.

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 incumbents in similar jobs. (§ 12926, subd. (f)(2); see Furtado, supra, 212 Cal.App.4th at p. 743.) The record includes a variety of evidence establishing that the essential functions of a police recruit include rigorous physical demands and that the position’s qualifications include successful completion of the Academy training program and obtaining POST certification.

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.” (§ 1031, subd. (1); see White v. County of Los Angeles (2014) 225 Cal.App.4th 690, 706 [170 Cal.Rptr.3d 472] [standards of § 1031 “are part of every peace officer’s job description, and must be maintained throughout a peace officer’s career”].)

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 other physical tests. She stated that recruits who fail a required physical test can retake that test, but if a recruit fails a second time he or she is automatically expelled from the Academy. Recruits must also meet all POST standards before graduating from the Academy. According to the POST bureau chief for training program services, POST standards require recruits to go over a six-foot fence in a certain amount of time, sprint 500 yards, navigate an obstacle course that simulates movements in a police foot chase, and drag a 150 to 160 pound dummy a certain distance.

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 section 12940, subdivision (a).

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. Neman 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 [“FEHA did not obligate defendant to accommodate plaintiff by excusing him from the performance of essential functions”]; Cal. Code Regs., tit. 2, § 11068, subd. (b) [“[w]here a quality or quantity standard is an essential job function, an employer ... is not required to lower such a standard as an accommodation”].) As the court in Nealy explained, requiring employers to eliminate an essential function of a job to accommodate a disabled employee “would be at odds with the definition of the employee’s prima facie case” under FEHA. {Nealy, at p. 375.) The employee’s burden includes “showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.” {Ibid.)

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.

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 section 12940, subdivision (m), for failing to make reasonable accommodations must be reversed because, as a matter of law, “pre-probationary trainees like plaintiffs” are not entitled to accommodation by reassignment. Alternatively, the City argues that plaintiffs failed to show that funded, open, and comparable positions for which they were qualified were available at the time of their respective separations from the Department.

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, section 12940, subdivision (m)(l), makes it an unlawful employment practice to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” FEHA defines “reasonable accommodation” to include “reassignment to a vacant position.” (§ 12926, subd. (p)(2); see Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(N).) Whereas an employer may not violate subdivision (a) of section 12940 by terminating a disabled employee who cannot perform the essential functions of his or her job even with a reasonable accommodation, the employer may violate subdivision (m) of section 12940 if the employer fails to reasonably accommodate that employee by reassigning him or her to a comparable, vacant position whose essential functions the employee can perform.

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 Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).) FEHA does not require reassignment if there is no vacant position the employee is qualified to fill. (Nealy, at p. 377; Cuiellette, supra, 194 Cal.App.4th at p. 767; Spitzer, supra, 80 Cal.App.4th at p. 1389.) Nor does FEHA generally require the employer to promote the employee or to create a new position for the employee. (Nealy, at p. 377; Spitzer, at p. 1389; Cal. Code Regs., tit. 2, § 11068, subd. (d)(4).)

“ ‘[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 vacancies. (Nealy, supra, 234 Cal.App.4th at pp. 377-378; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968.) An employer’s policy or practice of offering other employees the same or similar assistance or benefits requested by the plaintiff, however, is relevant to determining whether such assistance or benefits are “reasonable.” (See Cuiellette, at p. 767; Raine, supra, 135 Cal.App.4th at p. 1227, fn. 10; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-951 [62 Cal.Rptr.2d 142].)

Like a claim for discrimination under section 12940, subdivision (a), a claim for failure to accommodate under section 12940, subdivision (m), requires the plaintiff to show that he or she is a “qualified individual” under FEHA. (See Furtado, supra, 212 Cal.App.4th at pp. 744-745; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 977.) Where the plaintiff contends that an employer failed to accommodate by reassigning him or her to another position, “the plaintiff proves he or she is a qualified individual 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 v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255-256 [102 Cal.Rptr.2d 55] (Jensen); accord, Furtado, at p. 755; Nadaf-Rahrov, at p. 977; see Lui, supra, 211 Cal.App.4th at p. 971; Cuiellette, supra, 194 Cal.App.4th at p. 769.) “Arguably, [the] plaintiff’s burden of proving he is a qualified individual includes the burden of proving which duties are essential functions of the positions he seeks.” (Lui, at p. 972.)

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 Cal. Code Regs., tit. 2, § 11068, subd. (d)(1) [as a reasonable accommodation, an employer may offer “an employee” a suitable, vacant position for which “the employee” is qualified].) Applicants are not entitled to reassignment because, unlike employees, they have never performed the essential functions of the original position and therefore are not initially qualified individuals under FEHA. (See Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 483 [100 Cal.Rptr.2d 914] (Quinn) [employer had no obligation under FEHA to accommodate an employee who “was never qualified to be hired from the outset”]; see also Equal Employment Opportunity Com., Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002) § 25 (EEOC Guidance) [as of Feb. 14, 2017]; 29 C.F.R. § 1630, appen. (2016); § 1630.2(o) (2016).)

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 “preproba-tionary” 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.)

In Swanson, supra, 232 Cal.App.4th 954 the court held that FEHA protects “probationary” employees, including by requiring reassignment, where such reassignment is reasonable. (Swanson, at pp. 967-968, 970.) In that case an “untenured, probationary teacher” sued a school district under FEHA for not renewing her teaching contract after the teacher had requested a new assignment that would have accommodated her medical condition. (Swanson, at p. 967.) The school district argued that, because the plaintiff had no right to renewal of her contract, the district could assign her to any teaching position it deemed appropriate. {Ibid.) The court disagreed, stating that “[n]either [the plaintiffs] probationary status nor the District’s discretion to make teaching assignments deprives [the plaintiff] of the FEHA’s protections or otherwise allows the District to unlawfully discriminate against her.” {Ibid.) The court observed that, if FEHA did not protect probationary employees because they could be terminated at any time, FEHA “would never apply to an at-will employee,” which clearly is not the law. (See Swanson, at p. 968.)

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. (13) (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”].) (14) 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; Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).)

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 against such employees and entitles them to reassignment where reasonable. (Jensen, supra, 85 Cal.App.4th at pp. 250, 266 [at-will employee stated claim for failure to provide reasonable accommodation by reassignment]; cf. Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 898 [172 Cal.Rptr.3d 465] [“[a]t-will employees, like other employees, are protected [by FEHA] from terminations which are ‘motivated by legally proscribed, invidious discriminatory attitudes, such as animus toward a particular race or gender’ ”]; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1524 [152 Cal.Rptr.3d 154] [the reason for terminating an at-will employee “need not be wise or correct so long as it is not grounded on a prohibited bias”].) FEHA entitles probationary and prepro-bationary” employees, like at-will employees, to reasonable accommodation by reassignment in appropriate circumstances.

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; 42 U.S.C. § 12101 et seq.; EEOC Guidance, supra, Introduction). The EEOC Guidance answers the question, “Is a probationary employee entitled to reassignment?” as follows: “Employers cannot deny a reassignment to an employee solely because s/he is designated as ‘probationary.’ An employee with a disability is eligible for reassignment to a new position, regardless of whether s/he is considered ‘probationary,’ as long as the employee adequately performed the essential functions of the position, with or without reasonable accommodation, before the need for a reassignment arose.” (EEOC Guidance, supra, § 25.)

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