By Emily Nelson
Anthony Rorrer, a firefighter for the City of Stow, Ohio, alleged the City violated the Americans with Disabilities Act (ADA) by firing him after he completely lost vision in one eye in a non-work related accident. In Rorrer v. City of Stow, a Federal Court of Appeals reversed a lower court’s grant of Summary Judgment to the City, allowing Rorrer’s ADA claims against the City to proceed.
Rorrer had worked as a firefighter for the City for nearly ten years before losing all vision in his right eye as the result of a non-work related bottle rocket accident. After being cleared by his surgeon to return to work, Rorrer underwent a return-to-work physical with the City’s Department Physician, Dr. Moten. Another physician who occasionally fills in for Dr. Moten initially examined Rorrer and cleared him for work with no restrictions, advising him to “enter into this work with caution and…be quick to obtain the assistance of his colleagues,” during his return. However, City of Stow Fire Chief William Kalbaugh was apparently troubled by the substitute physician’s assessment, and called Dr. Moten. Despite the fact that Dr. Moten did not personally examine Rorrer, he stated that there had been a mistake and that Rorrer was “unfit to return to work because he was totally blind in his right eye[,] and that his office would promptly send a revised form to this effect.” In making this determination, Dr. Moten told Rorrer that the “fire regs” would not allow his return.
Chief Kalbaugh later testified that the Department had adopted guidelines promulgated by the National Fire Protection Association (NFPA), and that under those guidelines Rorrer’s monocular vision prevented him from performing an “Essential Job Task: Operating fire apparatus or other vehicles in an emergency mode with emergency lights and sirens.” The Department also referred to an internal document describing the firefighter position’s requirements, which specify that a firefighter “[m]ay operate emergency vehicles en route to emergencies and during patient transport to hospital…” (emphasis in original). However, the Court found that Rorrer had provided sufficient evidence to call into question whether the Department had ever adopted the NFPA guidelines:
The record is actually replete with evidence that the Department never adopted NFPA guidelines and did not rely on them in determining that Rorrer was unfit to serve as a Stow firefighter…The Department did not execute the NFPA’s implementation plan, and did not require the annual physicals mandated by the NFPA…When deposed, Dr. Moten initially could not identify what “fire regs” mandated that a monocular firefighter was unfit to serve…he repeatedly referred vaguely to “fire regs” … Only after counsel asked for a break was Dr. Moten able to identify the “NFPA,” but he still could not say what those initials represented.
Additionally, the Court found that there was enough evidence for a reasonable jury to conclude that operating an emergency vehicle was not an “essential function” of the firefighter position under the Department’s internal policies. The Court clarified that the District Court incorrectly deferred to the Department’s judgment as to whether driving an emergency vehicle was an “essential function” of the firefighter position, noting that Courts are not required to give such deference when “the record suggests there is a genuine dispute of material fact on the issue.” Further, the Court of Appeals found other firefighters’ testimony that “some Stow firefighters never drive an apparatus as a matter of choice,” and the City’s firefighter job description, were enough evidence to allow the case to proceed.
A reasonable jury could find that the addition of the conditional “may” to a task in a list that otherwise mirrors the NFPA’s mandatory language reflects the peculiarity of the Department’s rotation policy, in which it is essential for some firefighters to drive an apparatus but not necessary that every firefighter do so.
Editor’s Note (Jim Cline): The ADA requires an accommodation of individuals capable of performing the “essential functions” of the job, with or without a reasonable accommodation. As this Court noted, this is a “fact” question that can often only be resolved after a Trial. As this Court also noted, an Employer’s preferences regarding position rotation are not conclusive as to whether duties are “essential.” What really matters are the actual practices and actual operating realities of the Department.
