Elliott Galindo worked for the City of Los Angeles as cement finisher in the City’s Department of Public Works, Bureau of Street Services.

In 2004, Galindo suffered a work-related back injury and did not return to full duty as a cement finisher until 2006. In 2008 he suffered another back injury and was off work for almost a year while his worker’s compensation claim was pending.

In 2009 he was given permanent work restrictions including “Limited to light duty only. He cannot perform any type of strenuous work. He should avoid lifting greater than 10 lbs, avoid repetitive bending, . . . avoid repetitive twisting, and avoid unusual body positioning for his spinal condition.”

Galindo confirmed that the medical work restrictions were accurately stated. He believed he could nonetheless perform his job as a cement finisher if he was given a “lead man” role, “less hands on.” He declined to be considered for another job classification, declined transfer to a lower-wage position, and said he was not aware of any equipment or devices that could assist him in completing his regular job duties.

Numerous interactive process meetings were held by the City. At the first, he asked to be returned to his position as a cement finisher. The City asked him to complete a City employment application identifying all of his work qualifications so that he could be considered for other modified duties or classifications. Additional meetings took place with similar results.

By 2011 a disability retirement was approved by LACERS. Subsequently there were additional interactive process meetings after he was retired.  Essentially Mr. Galindo asked to return to work as a cement finisher and declined to consider other work. Ultimately he filed a claim of discrimination with the DFEH, obtained a right to sue letter and filed a civil complaint.

While his civil action was pending, in 2015 LACERS asked for three medical examinations to re-evaluate his disability retirement. All three doctors reported that he could return to work as a cement finisher without restrictions. By May, 2015 he returned to work as a cement finisher without restrictions.

The City moved for summary judgment in September 2015 which was granted and the case dismissed. The court of appeal affirmed the dismissal in the unpublished case of Galindo v City of Los Angeles.

The City presented undisputed evidence that it was at all times constrained by work restrictions issued by the Workers’ Compensation Division. In order to prevail on a claim of disability discrimination, an employee must show that the employer took the adverse employment action with a discriminatory animus. The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.