By David Worley
In Furtado v. State Personnel Board, 34 IER Cases 1585 (Cal. Ct. App. 2013), the court upheld a medical demotion of a California Correctional Lieutenant to a support position who was deemed unable to perform the physical aspects of the peace officer job after he failed the baton handling test. A California Government Code barred waiving physical requirements of peace officer jobs, the court held that, and the Lieutenant’s request to be transferred to an “Administrative Lieutenant” position was functionally a request to have those requirements waived, as all corrections officers must be able to perform the physical requirements.
Furtado was injured in a car accident which ultimately resulted in a severe limitation on the use of one arm. His employer placed him on medical leave, provided him a temporary light duty position, and provided multiple opportunities to demonstrate that he was capable of performing his job duties. He failed two attempts at a baton handling test, a measure of his ability to subdue inmates. The Corrections Department demoted him to a support position without a physical requirement. Furtado then brought suit, alleging that either the physical requirements should be waived, or that he should be moved to an “administrative” corrections lieutenant position.
To prove a California state disability claim, the court explained that the officer must prove that he is otherwise qualified to perform the essential functions of the job with or without a reasonable accommodation. First, the employer clearly established that being able to restrain an inmate and effectively use a baton were essential functions of the job. Although higher ranking officers had to restrain inmates less frequently, even the prison warden testified that he occasionally had to use force. Further, government code explicitly required all peace officers be physically capable. The court then evaluated the “accommodations” requested by Furtado.
Furtado was not entitled to either of these “accommodations.” Waiving the baton certification requirement would mean that Furtado would not have to demonstrate that he is a “qualified individual” within the meaning of FEHA. Instead, it would allow Furtado to continue as a correctional lieutenant while being unable to perform all of the essential functions of the position. Further, because the evidence demonstrates that there is no purely “administrative” correctional lieutenant position whereby no prisoner contact can be ensured, the Department would have to create a new “administrative” position that does not currently exist.
Unfortunately for Furtado, the job of peace officer could not excuse an inability to use force. The requirement extended to corrections officers of all ranks. His disability discrimination case could not go forward because any “accommodation” he requested was actually requesting a waiver of the essential functions of the position of peace officer.
