Facts

Plaintiff Henry J. Kroeger was a retired state employee when he applied to the California Dept. of Parks and Recreation for a communications operator position in Monterey. The position required precise hearing because it included public safety dispatch duties.

Kroeger was offered the job in February 2005, subject to satisfying the Commission on Peace Officer Safety & Training (POST) requirement that all public safety dispatch candidates pass a medical examination. Kroeger's medical examination results were evaluated by the State Personnel Board's (SPB) state medical officer. The medical officer found Kroeger's hearing to be abnormal, as he was unable to discern a significant percentage of words spoken to him. Based on those findings, the Dept. considered Kroeger medically disqualified and withdrew the job offer.

Kroeger challenged the medical disqualification before the SPB. In early 2007, more than a year after the hearing, the SPB adopted the hearing officer's recommendation that the Dept. reinstate the job offer if Kroeger could safely perform the essential functions of the job with reasonable accommodation.

In response, the Dept. sent Kroeger a reasonable accommodation request form. The parties could not agree on a specific accommodation, but in June 2007 the Dept. asked Kroeger to select a start date and informed him that further assessment of reasonable accommodation would occur on the job.

Kroeger subsequently explained that his personal life had changed and he could no longer accept the job. He then sued the Dept. in January 2008 for disability discrimination under the Fair Employment and Housing Act (FEHA), alleging the Dept. failed to accommodate him back in 2005.

PLAINTIFF'S CONTENTIONS:
Kroeger contended it was the Dept.'s duty to engage in good faith consideration of a reasonable accommodation for the job as soon as his medical examination showed abnormal hearing. He contended that turning up the volume on a headset could have been a simple, available accommodation. Hence, summary judgment was improper because the Dept. did not negate the possibility that he could perform the essential functions of the job with a reasonable accommodation.

DEFENDANT'S CONTENTIONS:
The Dept. contended that the duty to offer a reasonable accommodation for the job never arose because Kroeger failed to present any facts, other than speculation and conjecture, to show he was otherwise qualified. The Dept. also noted that Kroeger was not seeking an accomodation for the medical examination, rather he was insisting the Dept. violate POST regulations by hiring him and providing him accommodations for the job prior to satisfying the POST requirement that all candidates must pass a medical examination.

Damages

Kroeger claimed emotional distress, loss of income, and loss of additional pension benefits.

Result

The Dept. filed a motion for summary judgment, which the trial court granted upon a reversal of its tentative ruling. The trial court ultimately found that Kroeger did not establish a triable issue of fact as to whether he was qualified for the position because he failed to offer any evidence of an existing accommodation that would have enabled him to perform the essential functions of the job. Summary judgment affirmed on appeal, with costs awarded to the Dept. The Third District Court of Appeal noted that Kroeger failed to identify any particular device that would have allowed him to perform the essential functions of the job, and declined to adopt Kroeger's "logical presumption" that the Dept. had the means to accommodate him without specific evidence in the record. The Court also noted that unlike cases where employers imposed blanket hiring exclusions based on alleged physical disabilities, the Dept. did not reject a class of persons and based its hiring decision on an individualized evaluation of Kroeger.

Other Information

FILING DATE: Jan. 10, 2010. Appeal filed January 7, 2010. Unpublished opinion posted on September 7, 2011.