[IPAC-List] City of Merced Settles Discrimination Suit With Firefighter - perceived disabled and unable to perform essential duties of his job

[Ines.Fraenkel at sfgov.org]

Merced Sun-Star



Tuesday, Nov. 27, 2012





Modified


Tuesday, Nov. 27, 2012


City of Merced settles discrimination suit with firefighter


By JOSHUA EMERSON SMITH


jsmith at mercedsunstar.com


The city of Merced has agreed to settle a disability discrimination lawsuit
for $425,000.


The move comes after a Merced County Superior Court judge determined the
city had violated the rights of Ryan Staiger, who filed a complaint against
the Merced Fire Department.


The city of Merced hired Staiger as a firefighter in 2007. However, the
offer was retracted after several medical exams concluded he had "residual
affects" from an arm fracture he suffered as a teenager.


The city initially appealed the judge's decision, which would have forced
the city to offer to rehire Staiger. However, officials recently decided to
accept the settlement offer, which severs ties with the disgruntled party.


Staiger could not be reached for comment.


Nationwide standards


Based on the National Fire Protection Association standards, a city doctor
and a private specialist each said Staiger was not fit to perform the
essential duties of the job because of the limited range of motion in his
right wrist and elbow, said Greg Diaz, city attorney.


"The standards that the city has adopted are nationwide standards," he
said. "If we're going to err on the side of caution, I want to air on the
side of making sure the public is safe and fellow firefighters are safe,
rather than on the fear of lawsuits."


Staiger, who now works for the California Department of Forestry and Fire
Protection, disagreed with the city's conclusion. In 2008, he reached out
to the California Department of Fair Employment and Housing Commission


The commission took up the case, arguing Staiger's condition had not
prevented him from working as a wilderness firefighter, and that the city
failed to properly establish his inability to perform all essential tasks.


According to the commission, the city should have done a more personal and
through assessment, looking specifically at his ability to compensate for
the limited range of motion in his right arm by rotating his shoulder.


"Employers cannot discriminate against job applicants perceived to be
disabled," said Phyllis W. Cheng, Department of Fair Employment and Housing
director. "The Fair Employment and Housing Act requires that employers
engage in an interactive process to identify reasonable accommodations to
perform essential job functions."


Right to 2nd opinion


At the same time, the commission asserted that the city failed to properly
inform Staiger of his right to choose a doctor for a secondary medical
opinion.


The city said it notified Staiger of his right to get his own doctor by
phone, and maintained that the medical professionals employed by the city
made the appropriate decision.


"This has been frustrating, because we think we ought to be able to rely
upon the medical determination of our own doctors," Diaz said.


The settlement amount was largely based on wages and benefits Staiger would
have accrued over the duration of the court battle, which started in Dec.
2009.


The city's insurance carrier has agreed to pay about $200,000 of the
settlement amount.


Reporter Joshua Emerson Smith can be reached at (209) 385-2486
or jsmith at mercedsunstar.com.








http://www.mercedsunstar.com/2012/11/27/2673914/city-of-merced-settles-discrimination.html











            Phyllis W. Cheng | Director


            Department of Fair Employment and Housing


            State of California | State and Consumer Services Agency


            2218 Kausen Drive | Suite 100 | Elk Grove | California | 95758


            Telephone: 916.478.7251 | Fax: 916.478.7329


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            CALIFORNIA’S CIVIL RIGHTS AGENCY




Ines Vargas Fraenkel
Chief Supervising Attorney - Office of Citizen Complaints
25 Van Ness Ave., Suite 700
San Francisco, CA 94102
(415) 241-7738 direct
(415) 518-6052 cell
(415) 241-7733 fax
ines.fraenkel at sfgov.org
www.sfgov.org/occ