Personal Injury Law

Sacramento Firefighter Subjected To Workplace Harassment, Part 16 of 19

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

B. The Application for Involuntary Disability Retirement was an Adverse Employment Action
The defendant cynically claims that it had a duty to apply for plaintiffs disability retirement because of the following language in Government Code §21153:

Notwithstanding any other provision of law, an employer may not separate because of a disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any member believed to be disabled... [emphasis added]

This argument can be dispensed with very quickly: First of all, the duty to retire only comes into play once a decision to separate a disabled employee is made. In other words, there is no duty to retire an employee believed to be disabled "unless a decision has first been made to separate that employee from employment. The problem this creates for the defendant is that the jury found that the City's motivation in separating Mr. Carter was unlawful retaliation and disability discrimination, not because of any sincerely held belief that he was permanently disabled as a firefighter.

Importantly, the jury was instructed that Government Code §21153 only comes into play when the employer believes that the employee has a permanent disability. That is because many disabled employees have temporary conditions, or chronic conditions that are likely to get better over time or with treatment. Obviously, there is no rule that requires the City to automatically separate all employees believed to be disabled. The disability must sincerely believed to be permanent. That is devastating to the defendant because Roni Moore admitted under cross-examination that she submitted plaintiffs retirement application, and then pursued that application for months with no information on his prognosis. The jury found that the retirement application was motivated by retaliation and prejudice-not a good faith assessment of Mr. Carter's long-term ability to work.

Full post as published by Sacramento Injury Lawyer Blog on September 23, 2009 (boomark / email).