Retirement of Officer with Diminished Vision Might Violate ADA


By Jeffrey Rhodes May 20, 2020
police officer

​A station officer of the Somerville City Police Department could continue pursuing his Americans with Disabilities Act (ADA) claim despite his monocular vision, the 1st U.S. Circuit Court of Appeals ruled.

The plaintiff served for 19 years as a police officer in Somerville, Mass. In 2002, he suffered an injury that resulted in a loss of almost all vision in his left eye. Not long after the injury, physicians cleared him to return to duty without restrictions. In 2007, after several years as a patrol officer without incident, he successfully bid for the position of station officer. He performed all essential functions asked of him over the years.

During his tenure, the plaintiff twice tested positive for marijuana, requiring him to agree that he could be fired if he tested positive again. At some point in 2015, one of the plaintiff's supervisors believed the plaintiff had reported to work smelling of marijuana.

Upon questioning by his captain, the plaintiff admitted that he sometimes smoked marijuana to alleviate migraines that resulted from his 2002 injury. In lieu of a drug test, the plaintiff agreed to undergo a fitness-for-duty exam. The doctor discovered that the plaintiff had very little vision in his left eye and referred him to an ophthalmologist. The ophthalmologist confirmed that the plaintiff had essentially monocular vision.

Based on that finding, the ophthalmologist deemed the plaintiff unfit for duty because the impairment would, in his view, make the plaintiff unable to drive at high speeds in pursuit of suspects. Following the ophthalmologist's report, the city initiated involuntary retirement proceedings with the Somerville retirement board.

The involuntary retirement proceedings required a panel of three doctors to conduct assessments regarding plaintiff's fitness to work as a police officer. Two concluded that the plaintiff's monocular vision rendered him unable to perform the essential duties of a police officer because the injury limited his depth perception, lowered his field of peripheral vision and could increase his risk of suffering a debilitating injury.

The third doctor, however, disagreed with these concerns and stated that individuals with monocular vision frequently learn to compensate for their injuries. Because the plaintiff regularly drove a motorcycle, he could likely "pursuit drive" safely. This doctor nonetheless concluded that the plaintiff was unfit for duty because of his marijuana use, contradicting one of the other panel doctors, who concluded that off-duty marijuana use was no bar to his employment.

The panel doctors submitted their report to the board, which approved their recommendation that the plaintiff be involuntarily retired. The plaintiff began receiving disability retirement benefits.  In response, the plaintiff requested a light-duty accommodation without "pursuit driving." The city never discussed the possibility of such an accommodation, with the chief of police later claiming that there were no such permanent positions within the department.

The plaintiff filed a lawsuit alleging violations of the ADA, the Rehabilitation Act and Massachusetts anti-discrimination law. 

[SHRM members-only how-to guide: How to Handle an Employee's Request for an ADA Accommodation]

The city moved for summary judgment, which the district court granted, concluding that the plaintiff failed to show that he was qualified to be a police officer because his monocular vision rendered him incapable of performing the essential job functions.

On appeal, the 1st Circuit found inconsistencies in the city's response to the plaintiff's accommodation request. The chief of police testified that he could not recall if pursuit driving was done often, and he could not recall a specific incident. The plaintiff testified that he never had to perform pursuit driving in his 19 years on the force. There was no other evidence of any Somerville officer needing to engage in this function.

In addition, the fact that the three doctors contradicted each other, with two believing that monocular vision was a bar to employment and one disagreeing, suggested that the plaintiff might reasonably argue to a jury that he could continue to work as a station officer. 

While the 1st Circuit reversed the summary judgment ruling, it held that the city might have other grounds for seeking summary judgment. These included the fact that the plaintiff did not contest his disability retirement and that marijuana use might be a bar to continued employment.

Melo v. City of Somerville, 1st Cir., No. 19-1337 (March 24, 2020).

Professional Pointer: While an employer may assume that certain job duties are essential, a court will question those assumptions when considering an ADA claim. Employers must have evidence to support its assumptions to dispute a claim.

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


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