Mark A. Raine v. City of Burbank,
2nd Appellate District Court of Appeals
for the State of California, Division 7

By
Richard J. Kern

The California Court of Appeals has ruled that an employer who creates a temporary transitional work position for a disabled worker does not have to make that temporary transitional job permanent. In the case of Mark Raine v. City of Burbank, the Court of Appeals upheld the trial court’s granting a motion for summary judgment, finding that Raine, a police officer for Burbank Police Department, was unable to perform the essential job functions of a sworn patrol officer with or without reasonable accommodation and that it was unreasonable to require the City to permanently place Raine at the front desk, which was a permanent position reserved for civilian personnel. The court ultimately found there was no evidence of disability discrimination, age discrimination or retaliation.

The court noted that California law is emphatic that an employer has no affirmative duty to create a new position to accommodate a disabled employee but that no California court had yet addressed whether an employer is obligated under the Fair Employment and Housing Act to make a temporary position available indefinitely once the employee’s temporary disability becomes permanent. While it is true that Federal Court’s of Appeals’ interpretation of the Americans With Disability Act (upon which the Fair Employment and Housing Act’s accommodations are modeled), consistently has held that an employer is not required to create a light duty position for purposes of accommodating a disabled employee, Raine suggested to the court that the Fair Employment and Housing Act should be interpreted to do just that. The court noted that the evidence was undisputed that the front desk position used by the Burbank Police Department for officers recovering from injuries was typically a permanent job for civilian police technicians receiving less pay and fewer benefits than sworn police officers. However, Raine made it clear that he did not want that civilian position but instead wanted to maintain his position as a police officer with benefits and pay commensurate with that job and still hold the position which was reserved for a civilian assignment. The court distilled the question as whether the accommodation requested was reasonable and thus required in the first place. The court held otherwise and refused to engage in the analysis on the basis Raine suggested, that the accommodation did not impose undue hardship on the City of Burbank.

This case emphasizes the need to identify jobs as temporary transitional jobs rather than permanent jobs when attempting to get workers back into the work force. Many times an employee will interpret placement in a light duty position to be a permanent accommodation. This was not the issue in the Raine case, but is an issue that Yohman, Parker, Kern, Nard & Wenzel has repeatedly seen in application of temporary transitional work positions. Employers utilizing this means of accommodating employees and returning them to full capacity after either a work-related or non-work related disability are well advised to communicate the terms and conditions of temporary transitional work and to move the employees from that work once they have reached a permanent and stationary status or maximum medical improvement, depending on the nature of their disability.

If you are in need of legal advice on how to devise a legally sufficient "temporary transitional position" that will not offend the ADA/FEHA accommodation requirements you may contact the firm for consultive services.

Click to review copy of Decision: Raine.pdf