Last
month, the Sixth Circuit reversed judgment for a city which had fired a
firefighter after he lost vision in one eye – limiting his ability to drive -- without
adequately considering reasonable accommodations. Rorrer
v. City of Stow, No. 13-3272 (6th
Cir. 2-26-14). The Court found there to
be a disputed issue of fact as to whether driving emergency vehicles was an
essential function for a firefighter. It
also found the plaintiff’s proposed accommodations – including a transfer to a
possible vacancy in the fire prevention bureau -- could be reasonable. It also ordered that the case be reassigned
to a different trial judge on remand because of the appearance of partiality. Nonetheless, the Court affirmed dismissal of
the §1983 First Amendment retaliation claim based on the plaintiff’s testimony
in a union arbitration challenging disciplinary action taken against a
co-worker in an unrelated dispute. The
Court concluded that “sworn testimony in a private proceeding is not sufficient
to elevate speech of purely private content to a matter of public concern”
which would be necessary in a First Amendment retaliation claim.
According
to the Court’s opinion, the plaintiff’s physician released him to return to
work without restrictions following his eye surgery. When he arrived at his fitness for duty
examination, the visiting physician also cleared him to return to work, but
noted that he should be extra careful when wearing a self-contained breathing
apparatus and when driving emergency vehicles at high rates of speed. However, when he attempted to return to work,
the Fire Chief balked and insisted that the regular examining physician reconsider
returning a monocular vision firefighter.
The regular physician agreed that a mistake had been made and, without
personally examining him, declared the plaintiff “unfit” for duty. He was
ultimately fired. The regular physician
cited “fire regs” but could not identify any such regulations during his
deposition or when questioned by the plaintiff.
The
City contended that NFPA 1582-9.1.3(10) required the plaintiff to operate
emergency vehicles. “NFPA guideline 1582-9.12.3.1 states that monocular vision
“compromises the [firefighter’s] ability to safely perform essential [J]ob
[T]ask 10.” The firefighter’s union,
however, disputed that the NFPA guidelines had ever been adopted or implemented
by the city or civil service commission.
The informal job description indicated that a firefighter may operate an emergency vehicle, as
assigned. In addition, the Fire Chief
insisted, and the plaintiff admitted, that no firefighter could refuse to drive
an emergency vehicle. In contrast, the
union asserted that driving was not an essential function because there would
always be at least two other firefighters on duty who could drive instead of
the plaintiff. In any event, the
plaintiff requested that he be accommodated by being relievedd of the duty to
drive or to be transferred to the fire prevention bureau (where there was
arguably a vacancy and is where firefighters were assigned for transitional
duty). His request was denied on the
grounds his injury was not work related, there were no vacancies and that
inspectors still had to be able to perform all essential firefighter duties.
During
the litigation, the trial court imposed a numerical witness limit on the
plaintiff, but not the employer. The
court also refused to consider testimony by two other monocular vision
firefighters in other departments. The court ultimately granted summary
judgment for the city and the fire chief.
Among other things, it found driving emergency vehicles to be an
essential function of the firefighter job based on the NFPA guidelines and the
Chief’s opinion.
On
appeal, the Sixth Circuit concluded that there was a genuine issue of material
fact about whether driving an emergency vehicle was an essential job
function. “Determining whether a
function is essential ‘is a question of fact that is typically not suitable for
resolution on a motion for summary judgment’” when there is conflicting
deposition testimony. The employer’s
opinion on essential job functions is not dispositive, even if there is a
written job description. Instead, an
employer’s opinion is given consideration and weight, but not deference. There was also disputed evidence about
whether the City had ever adopted the NFPA guidelines. The city’s physician gave conflicting
explanations as to the basis for his opinion and only cited the NFPA after the
City’s attorney conferred with him off the record during the deposition. In contrast, there was evidence that
forbidding the plaintiff from driving would have been minimally inconvenient for
the fire department. The job description
listing driving as a conditional job requirement that “may” be necessary, but
unlike other job duties, is not always required.
In
light of its finding that driving emergency vehicles might not be an essential
function, the Court concluded that it may have been a reasonable accommodation
for the employer to relieve the plaintiff of that duty. Moreover, there was a disputed issue of fact
as to whether there was a vacancy in the fire prevention bureau. Interestingly, the Court rejected the city’s
argument that fire inspectors were similarly required to be able to drive
emergency vehicles:
The City argues that, even if a permanent position existed in
the FPB, Rorrer’s transfer request was unreasonable because “the position of
‘Fire Inspector’ does not exist; it is merely a firefighter assigned to a
particular job duty.” See Kleiber, 485 F.3d at 870 (“[T]he plaintiff
generally must identify the specific job he seeks and demonstrate that he is
qualified for that position.”). This argument lacks merit. The position in the
FPB was that of an inspector, designed to prevent fires, not fight them. The
City does not dispute that Rorrer had the “expertise, training, and
certification” to fulfill these job duties. Rather, the City argues that Rorrer
was unqualified because the Department’s job description of someone functioning
as a fire inspector is “firefighter,” which includes the task of driving an
apparatus during an emergency. The City’s unwillingness to modify a job
description to accommodate Rorrer, even though that modification would not
have required any change in job duties,
falls short of the City’s obligation “to locate a suitable position” for Rorrer
after he identified a vacancy and requested a transfer. See Kleiber, 485
F.3d at 870.
. . . .
If placed in the FPB, Rorrer would “need” to perform the
function of operating a fire apparatus under emergency lights only because the
City’s policy said so. There is no indication on the record that a fire
inspector ever actually performed this function. Had the City engaged in a good
faith effort to accommodate Rorrer, the record suggests that Rorrer could have
served in the FPB without any modification of the actual job duties that
position entails.
The
Court also rejected the city’s argument that eliminating the driving
requirement for the plaintiff would have created an undue burden. It also found that there was a disputed issue
as to whether the city had engaged in a good faith interactive process to
conduct an individualized inquiry to find a reasonable accommodation after the
plaintiff proposed two accommodations.
In fact, there was evidence that the city “refused to discuss” even
superficially a potential transfer of the plaintiff to the fire prevention
bureau.
The
Court found no abuse of discretion in precluding evidence about other monocular
firefighters. Nonetheless, the Court
ordered the case to be reassigned to a different judge on remand because its
discovery orders and remarks about the plaintiff “compromise the appearance of
justice.” The Court agreed with the
plaintiff “that the district court’s handling of this case was questionable and
that reassignment is advisable to preserve “the appearance of justice.”
NOTICE: This summary is designed
merely to inform and alert you of recent legal developments. It does not
constitute legal advice and does not apply to any particular situation because
different facts could lead to different results. Information here can change or
be amended without notice. Readers should not act upon this information without
legal advice. If you have any questions about anything you have read, you
should consult with or retain an employment attorney.
