Forced Reassignment Was Not a Reasonable Accommodation

​The 4th U.S. Circuit Court of Appeals revived a police officer's Americans with Disabilities Act (ADA) claim that the city of Newport News, Va., did not reasonably accommodate him when it reassigned him to a civilian position after his duty belt caused him chronic injuries.

The plaintiff was employed as a police officer with the Newport News Police Department for 19 years. During most of that time, he wore duty belts supporting pepper spray, a gun with ammunition, a Taser, a baton, handcuffs, a flashlight, a radio and a body-camera battery pack.

From 2006 through 2010, the plaintiff felt increasing pain when wearing his duty belt. In February 2011, the plaintiff notified the police chief that his police duty belt caused him permanent nerve damage called meralgia paresthetica that resulted in pain, numbness and tingling to his waist, left leg and thigh area. The city asked the plaintiff to undergo a fitness-for-duty evaluation to determine if his condition required accommodation. That examination confirmed that he suffered from left-thigh meralgia paresthetica.

A few months later, the plaintiff told the city that his condition appeared to be permanent and thus he could not wear a duty belt. He asked to be transferred to a unit like white-collar crimes or traffic light enforcement, which did not require wearing a duty belt. In response, he was transferred to the city's records unit, where he wore a shoulder holster instead of a duty belt.

In January 2014, a new police chief took over. In March, he ordered the plaintiff's transfer to the Precinct Property Crimes Investigation Unit as a detective, where he could wear plain clothes and need not wear a duty belt. The plaintiff continued to wear a shoulder holster.

In August 2015, someone reported that the plaintiff was wearing a type of waist belt and had a weapon mishap while executing a search warrant. The police department had him undergo another medical evaluation to determine if he was able to wear a duty belt. The doctor found that he could not and thus was unable to perform assigned duties as a police officer.

Around the same time, the chief instructed the unit to increase the number of officers patrolling Newport News. The assistant chief responded by requiring detectives to start wearing uniforms and take evening patrol shifts. The city also changed its human resources policies to require all officers to wear a duty belt and limited light-duty assignments to eight months.

Following these changes, the plaintiff was put on light-duty status because he was unable to meet the essential functions of his position. When his allotted eight months of light-duty status drew to a close, the city wrote the plaintiff and told him that wearing a duty belt was an essential job function. The city asked him for a list of potential accommodations that would allow him to perform that function.

The plaintiff responded that he could not wear a duty belt around his waist and requested the accommodation of a shoulder holster, which he had worn since 2011. He also stated that he could add a holster to his ballistic vest for high-risk assignments. Alternatively, he proposed that he be exempt from the requirement to wear a standard uniform and from patrol duties.

The city rejected the plaintiff's proposal to wear a shoulder or vest holster, citing the need to be in uniform and safety concerns, and rejected his request to avoid patrolling duties as an unacceptable permanent light-duty position. The city offered him a civilian job as a logistics manager procuring supplies and vehicles for the police department. The plaintiff asked for an increase in pay for the position, which was granted, but he then retired instead of accepting it.

The plaintiff sued under the ADA, alleging that the city failed to accommodate his disability. The city moved for summary judgment, which the district court granted because it found that reassignment was an offer of accommodation. The plaintiff appealed to the 4th Circuit.

On appeal, the 4th Circuit found that the district judge did not consider the reasonableness of the potential alternative accommodations requested by the plaintiff. Reassignment, the 4th Circuit reasoned, is a last-resort alternative. In cases of forced reassignment, a court must consider whether any alternatives to reassignment would have been reasonable before dismissing a claim.

The 4th Circuit thus instructed the district court to reconsider the reasonableness of the other requested accommodations.

Wirtes v. City of Newport News, 4th Cir., No. 19-1780 (April 30, 2021).

Professional Pointer: Courts frown on ADA reassignments, whether requested by the employer or employee. Unless both sides agree to a transfer, courts prefer accommodations that enable an employee with a disability to perform his or her position to reassignment.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.