On January 29th, 2020

CSLEA Wins Favorable Decision Representing Two HPOs in Discrimination Complaint The decision orders DSH to reinstate the officers to active duty and issue them back pay, benefits and interest

Written by CSLEA Supervising Counsel David De La Riva

PATTON - A discrimination complaint filed by California Statewide Law Enforcement Association (CSLEA) Supervising Counsel David De La Riva on behalf of two Bargaining Unit 7 Hospital Police Officers (HPOs), Brandon Robinson and Trevion Kennard, has resulted in a favorable decision by the State of California Personnel Board (Board). On January 16, 2020, the Board approved a decision by Administrative Law Judge Gregory Brown which provides in part that the Department of State Hospitals – Patton State Hospital (DSH - PSH) discriminated against the two HPOs by failing to accommodate their disability. As a result, the decision orders that DSH reinstate the officers to active duty and issue them back pay, benefits and interest.

Each officer suffers from Pseudofolliculitis Barbae which causes discomfort while and after shaving and limits one’s immune system. This condition qualifies as a disability under state and federal law. All DSH HPOs work under a grooming standards policy which prohibits the wearing of beards. Also, the HPOs’ expectations are memorialized in a Duty Statement. In mid-2018, the Duty Statement was amended to include that HPOs may be required to wear a respirator or gas mask while on duty.

In December 2018, Robinson and Kennard requested an accommodation based on their physicians’ recommendations to allow them to wear trimmed beards while on duty because of their skin condition. DSH refused to accommodate them as it insisted that wearing a gas mask was an “essential function” of the HPO position. According to DSH, each officer was prohibited from working because Cal OSHA requirements provide that a person with a beard cannot be properly fitted with a gas mask. That is because a person with a beard cannot form a seal around his face while wearing a respirator or gas mask. Therefore, the officers were unable to perform an “essential function” of their position.

At that time however, PSH HPOs including Robinson and Kennard had never been issued or properly fitted for masks, nor had they ever been required to respond to any call while on duty with a mask because they had never been made aware where, if at all, they could find gas masks on PSH grounds. Regardless, in late December 2018, PSH took Robinson and Kennard off the work schedule and forced them to deplete their leave banks and ultimately go on unpaid status thereby losing their livelihoods including health benefits.

In April 2019, CSLEA filed discrimination complaints on behalf of the two HPOs. CSLEA contended that DSH discriminated against the officers because DSH never attempted to accommodate the officers based on their disability. The Board scheduled the hearing on the complaint in Rancho Cucamonga in October 2019.

At the hearing, eleven witnesses presented their testimony over three days. In his decision, Judge Brown determined in part that while Cal OSHA does have a requirement concerning being properly fitted for a gas mask without a beard, Cal OSHA also requires that before a person can be fitted for a mask, he or she must be examined by a physician. This is necessary to determine whether the individual has any physical limitations (asthma, heart issues, etc.) which would affect his/her ability to wear a mask in the first place. DSH was out of compliance with this requirement.

Because DSH was out of compliance with Cal OSHA requirements and because no HPOs at PSH had ever been instructed they are required to use respirators in the course of their work, Judge Brown determined CSLEA demonstrated that the ability to use a respirator was never an “essential function” of the HPO position at PSH. Since this was never an “essential function”, Robinson and Kennard were in fact able to perform the duties of their position. In other words, PSH should have accommodated Robinson and Kennard by continuing to allow them to work with beards. By failing to do so, DSH/PSH wrongfully denied Robinson and Kennard their employment based on their disability.

“DSH insisted that Cal OSHA requirements prohibited Robinson and Kennard from working with beards, yet DSH itself neglected to adhere to the same regulations. Officers Robinson and Kennard have suffered greatly throughout this process, monetarily, physically and emotionally. CSLEA thanks them for their dedicated membership and perseverance. Because of dues-paying members like Robinson and Kennard, CSLEA was able to dedicate the necessary resources to put on an effective case and succeed.”

 

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