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Factual Dispute over Essential Functions of Firefighter Jobs Revives ADA Claim

By Daniel L. Boyer  3/27/2014
 

A firefighter who became partially blind and later was terminated for being unfit for duty can proceed with his Americans with Disabilities Act (ADA) claims, the 6th U.S. Circuit Court of Appeals ruled.

Anthony Rorrer was a firefighter for the Stow, Ohio, Fire Department for about eight years until a fireworks accident blinded his right eye. While his personal eye surgeon and a city-employed physician cleared Rorrer to return to work without restriction, department Chief William Kalbaugh objected. After learning of Rorrer’s work release, Kalbaugh requested a second medical review. The new physician, without completing a physical, concluded that there had been a “mistake” and Rorrer was unfit to return to work because he could not operate an emergency vehicle. Rorrer’s subsequent requests to be relieved of driving duties or transferred to an alternative fire inspector position were denied. Eventually, he was dismissed because of his impaired vision.   

Rorrer sued the city, claiming disability discrimination under the ADA and retaliation under various theories. The trial court granted complete summary judgment for the city, finding that driving an emergency vehicle was an essential function based on 1) a National Fire Protection Association (NFPA) guideline, 2) Kalbaugh’s testimony, 3) the job description and 4) Rorrer’s admission that he could not refuse to drive if a supervisor instructed him to do so. On appeal, the 6th Circuit affirmed the dismissal of the retaliation claims but reinstated Rorrer’s disability-discrimination claims, finding that a material factual dispute remained as to what functions were essential and whether the city had failed to provide a reasonable accommodation.

First, the court determined that a reasonable jury could find that the Stow Fire Department had never adopted the NFPA guidelines and that the department’s reference to them was merely an afterthought intended to support the termination decision. The court pointed out that multiple witnesses had testified that the department never adopted the NFPA’s guidelines or implemented an NFPA plan.

Second, the court ruled that the fire department’s determination of what functions are essential was not entitled to deference, because that determination was the subject of a genuine dispute. The court explained that, although an employer’s determination is given weight, it is but one of many factors courts should consider. The court cited ample evidence that the consequences of forbidding a firefighter to drive an emergency vehicle would be minimal. 

Third, the court disagreed that because a job description states a firefighter “may operate emergency vehicles,” the operation of such vehicles is an essential function. Based on the use of the conditional word “may” and the fire department’s rotation policy for its firefighters, the court reasoned there is doubt that operating an emergency vehicle is an essential function.

Finally, the court clarified that just because an employee feels compelled to perform a task when ordered to does not automatically make that task an “essential function.”

As for providing a reasonable accommodation, the court found that the fire department’s efforts fell short. It pointed to the department’s unwillingness to modify a job description to accommodate Rorrer, as such modification would have required no change in the actual duties, and further cited the department’s refusal to discuss reassignment as evidence of a failure to act in good faith during the interactive process.

Rorrer v. City of Stow, 6th Cir., No 13-3272 (Feb. 26, 2014).

Professional Pointers: Determining whether a job function is essential is done by examining several factors, including the employer’s judgment on what functions are essential and a written job description. However, simply labeling a function “essential” will not suffice; rather, an employer must support this determination with evidence of the position’s actual duties.

Daniel L. Boyer is an associate in the Portland, Oregon, office of Ogletree Deakins, an international labor and employment law firm representing management. 

 

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