A Los Angeles County Firefighter who was prohibited from returning to active duty and ordered to retire after he suffered two epileptic seizures while on-duty, has filed suit claiming the county violated California’s disability discrimination laws. Andrew Lithgoe filed suit in Los Angeles County Superior Court.
Lithgoe, a 16-year veteran, suffered the seizures in September 2018 and January 2019, but has been seizure-free since. However, he claims fire department personnel believe he suffered a third seizure in September, 2021. Lithgoe disputes the allegations and claims a medical evaluation proves he did not suffer another seizure.
The suit alleges employment discrimination, failure to accommodate, and failure to engage in an interactive process under California Government Code § 12940 et seq. Quoting from the complaint:
- PLAINTIFF has been diagnosed with epilepsy, a condition which may result in seizures. Seizures began in March 2010. He had one seizure on duty September 19, 2018 (during a 24-hour shift) and one seizure after being assigned to 10-hour light duty position January 10, 2019. That was the last time Mr. Lithgoe had a non-induced seizure.
- Mr. Lithgoe had been temporarily accommodated in a light duty Fire Fighter position due to temporary restrictions imposed by Dr. Jeffrey M. Chung, Cedars-Sinai Medical Center, on March 9, 2021.
- Mr. Lithgoe informed Defendants of those restrictions. The temporary restrictions were that Mr. Lithgoe could not work more than a 12-hour shift in a 24 hour period, and could not be sleep deprived.
- On May 27, 2021, Mr. Lithgoe was examined by Dr. Chung. Dr. Chung released Mr. Lithgoe to usual and customary duties without restrictions effective May 27, 2021.
- Dr. Chung indicated on a COUNTY-provided form that Mr. Lithgoe could perform all duties, including fighting fires, assisting in rescues, assessing patients’ conditions, planning inspections, driving and operating fire apparatus and equipment as required in emergency relief situations, performing as a paramedic on a mobile intensive care unit, driving and operating a pickup truck, and “other” duties.
- Shortly thereafter Mr. Lithgoe returned to full time duties.
- On September 30, 2021, Mr. Lithgoe was working his assignment at Training Services section.
- Some LACFD officials who believed they were familiar with Mr. Lithgoe’s medical history erroneously believed Mr. Lithgoe was having a seizure due to a false perception of behavior, but he was not having a seizure.
- Due to that erroneous belief about PLAINTIFF by LACFD officials, on October 1, 2021, PLAINTIFF was placed on Ordered Absence status by his superiors at LACFD due to the perception of having a “seizure” the previous day. Mr. Lithgoe did not have a seizure the previous day.
- Subsequent medical evaluation confirmed that Mr. Lithgoe did not have a seizure at any time around September 30, 2021.
- The assignment to “Ordered Absence” on October 1, 2021 resulted in loss of compensation and overtime opportunities for PLAINTIFF.
- On November 2, 2021, PLAINTIFF underwent a “fitness for duty examination” conducted by Dr. K. Adam Anees on behalf of Defendant COUNTY.
- In a meeting on March 24, 2022, PLAINTIFF was informed that as a result of the Fitness for Duty Evaluation conducted by Dr. Anees, the COUNTY and LACFD believed PLAINTIFF was disabled.
- Dr. Anees restricted PLAINTIFF, as follows: “On duty for a maximum of 12 hours and then must be off duty for 8 hours. His off-duty time is to be at home/outside of County facilities.”
- In the March 24, 2022 meeting, Mr. Lithgoe was told by Rachel Lara, Manager of Risk Management for LACFD, that based on the work restrictions found by Dr. Anees, the Department was “unable to accommodate” the perceived disability.
- PLAINTIFF’s counsel asked Ms. Lara why the restrictions imposed by Dr. Anees could not be accommodated and was told that firefighters work 24-hour shifts, and the department does not have 12-hour shifts.
- Mr. Lithgoe was then told that effective Friday, March 25, 2022, he would no longer be on Ordered Absence, and would have to begin using his own benefit time.
- Mr. Lithgoe was informed that he would need to file for a Non Service-Connected Disability Retirement application with the Los Angeles County Employees Retirement Association (LACERA), with or without salary supplement. Mr. Lithgoe was informed that if he did not file within seven (7) business days (i.e., by April 4, 2022), the COUNTY would file on his behalf.
- In or around April, 2022, the COUNTY did file for a retirement on Mr. Lithgoe’s behalf.
- Mr. Lithgoe has informed LACERA that he does not wish to retire at this time.
- On May 12, 2022, PLAINTIFF’s treating physician, Dr. Jeffrey M. Chung, from Cedars-Sinai, filled out and signed a LACFD Patient Status Report.
- The report states that Dr. Chung had examined PLAINTIFF on May 9, 2021 (in addition to the May 12, 2022 exam); that Plaintiff had been released to his usual and customary position without restrictions on May 27, 2021, that PLAINTIFF may have contact with the public.
- On or about June 22, 2022, Mr. Lithgoe wrote to Rachel Lara, LACFD Risk Management, to request an interactive process meeting to discuss items of disagreement regarding the March 24, 2022 meeting, and the Patient Status Report completed by Dr. Chung on May 12, 2022.
- Ms. Lara refused to engage in further discussion, stating that the COUNTY’s doctor’s report was the final opinion.
- On August 2, 2022, Mr. Lithgoe was informed by his Department that effective August 3, 2022 his Ordered Absence was terminated and he must use his own benefit time for any absences. This action effectively ends Mr. Lithgoe’s employment with Defendants COUNTY and LACFD.
Here is a copy of the complaint: