In May 2018, Thomas Lim began his employment with the City of Downey as a police officer. His probationary period ran for 18 months. During this probationary period, Lim was an at-will employee, and City could release him from employment for any legal reason upon giving him two weeks’ notice prior to the end of the period. After Lim’s probation concluded, City could terminate his employment only for good cause.

On December 8, 2018, Lim responded to a traffic collision as part of his official duties. As he investigated the accident, a car struck and injured him. Lim’s personal doctor at Kaiser Permanente provided a list of work restrictions, effective through January 25, 2019. The doctor observed that if the work restrictions could not be accommodated, Lim should be considered temporarily totally disabled. City could not accommodate the work restrictions and placed Lim on temporary total disability leave.

In late March 2019, City’s human resources director James McQueen received information suggesting that Lim might be engaging in physical activities associated with a basketball league while on temporary total disability leave. McQueen contacted City’s workers’ compensation third party administrator, AdminSure, and agreed to their recommendation to investigate Lim for possible fraud. AdminSure hired RJN Investigations (RJN) to conduct a sub rosa investigation.

While on disability leave, Lim engaged in physical activity that violated his work restrictions and then made sworn statements in a workers’ compensation deposition denying such physical activity. After Lim was cleared to return to work, and while he was still a probationary at-will employee, City terminated Lim’s employment because it believed he had engaged in workers’ compensation fraud.

Lim sued City under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination or retaliation.

City moved for summary judgment, arguing it had a legitimate reason to fire Lim because it believed he had engaged in fraud. City further argued Lim could not prove at least one element of each of his causes of action. The trial court granted the motion.

The Court of Appeal affirmed in the unpublished case of Lim v. City of Downey -B326822 (June 2024).

Lim does not directly dispute that City could terminate him for any legal reason during his probationary period, including suspected fraud. Instead, he argues he demonstrated a triable issue of material fact as to pretext because (a) City’s explanation was unworthy of credence, (b) his job performance was satisfactory, (c) City’s investigation was inadequate, (d) City decided to discharge him soon after he went out on disability leave (temporal proximity), and (e) City targeted him when it “raced to terminate [him] in November 2019 before the end of his probation.”

Lim argues City’s proffered reasons for discharging him are not valid because he was not required to use crutches. But this argument that crutches were not part of Lim’s work restrictions does not demonstrate that City’s reason for discharging Lim was unworthy of credence.

“The issue is not whether crutches were required but Lim’s inconsistent use of them and the contexts in which he chose to use and not to use crutches. Lim chose to use crutches on May 22, 2019, when he visited his employer, even though he had been observed not using them previously during a sub rosa investigation.”

“Notably, while at the police station, Lim not only used crutches, but also moved at such a slow pace that motion-activated cameras failed to capture his entire path. From the comparative visual evidence of Lim’s ease of movement in other contexts versus Lim’s plodding path at the police station, Chief Milligan could reasonably conclude that not only had Lim exaggerated the degree of his debilitation, but also that the investigators’ observations were credible. Indeed, Lim offers no explanation why he chose to use crutches during his May 22, 2019 visit to the police station.”