Monocular Vision Not a Per Se Barrier to Fire Service

The Sixth Circuit handed down a decision yesterday on firefighters with monocular vision. The case is important both for what it says about firefighters with disabilities, as well as what it does not say.

Anthony Rorrer was a firefighter for the Stow (Ohio) Fire Department from May of 1999 to July 4, 2008, when a bottle-rocket injured his right eye in an off-duty accident. Rorrer lost all vision in his right eye leading the fire department to eventually terminate his employment.

Rorrer sued under the American with Disabilities Act (ADA) and Ohio state law alleging discrimination on the basis of disability. He also alleged First Amendment retaliation under 42 U.S.C. § 1983. The trial court granted the fire department’s motion for summary judgment and Rorrer appealed.

In the court’s own words:

  • The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of a disability.”
  • The statute defines “discriminate” to include “not making reasonable accommodation to the known physical . . . limitations of an otherwise qualified individual with a disability” unless the employer “can demonstrate that the accommodation would impose an undue hardship.” …  
  • An “otherwise qualified individual” is one who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
  • To provide a reasonable accommodation, an employer may be required to modify the responsibilities of a disabled employee’s existing job or transfer the employee to a vacant position with different responsibilities
  • Whether a job function is essential “is a question of fact that is typically not suitable for resolution on a motion for summary judgment.”
  • Essential functions are “the fundamental job duties of the employment position the individual with a disability holds or desires. The term . . . does not include the marginal functions of the position.”
  • “Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors.”
  • Two factors are “the employer’s judgment as to what functions of a job are essential” and an employer’s “written description” of the job.
  • At the summary judgment stage, the employer’s judgment will not be dispositive on whether a function is essential when evidence on the issue is “mixed.”
  • If an employer’s judgment about what qualifies as an essential task were conclusive, “an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is essential, avoid the clear congressional mandate that employers mak[e] reasonable accommodations.”
  • Written job descriptions are also not dispositive.
  • Testimony from the plaintiff’s supervisor that a job function is actually marginal may effectively rebut a written description that states that a job function is essential.
  • The ADA also “mandates an individualized inquiry in determining whether an [employee’s] disability . . . disqualifies him from a particular position.”
  • The individualized inquiry is an “interactive process” in which “both parties have a duty to participate in good faith.”
  • The purpose is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”
  • The ADA mandates this process to ensure that employers do not disqualify applicants and employees based on “stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual’s ability to perform the job.”
  • “If this process fails to lead to reasonable accommodation of the disabled employee’s limitations, responsibility will lie with the party that caused the breakdown.”
  • This Court and our sister circuits have identified several situations that may indicate a failure to participate in the interactive process in good faith. Failing to discuss a reasonable accommodation in a meeting in which the employer takes an adverse employment action against an injured employee may demonstrate a lack of good faith.
  • Similarly, failing to assist an employee in seeking an accommodation may suggest bad faith.
  • The district court correctly found, and the parties do not dispute, that the City relied on Rorrer’s disability in making an adverse employment decision against him. The district court then properly proceeded to address the primary dispute between the parties: whether the City complied with the ADA in relying on Rorrer’s disability as a basis for terminating him.
  • The district court erred, however, in finding there was no genuine dispute as to whether driving a fire apparatus under emergency lights was an essential function of a Stow firefighter. The district court based this finding on its conclusion that the Department utilized the NFPA guidelines for determining a firefighter’s essential functions.
  • 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.
  • Multiple witnesses testified that the Department never adopted the NFPA guidelines. The Department did not execute the NFPA’s implementation plan, and did not require the annual physicals mandated by the NFPA.
  • The record suggests that Dr. Moten [the fire department’s physician] was not familiar with the NFPA guidelines and did not rely on them in finding Rorrer unfit to serve as a firefighter.
  • Contrary to the district court’s opinion, however, federal courts are not “required to give deference to [the employer’s] judgment regarding what the essential functions of the position [are]” when the record suggests that there is a genuine dispute of material fact on the issue.
  • The ADA states that the court should give “consideration” to the employer’s determination, not “deference,” with the latter incorrectly implying that the employer’s position creates a strong presumption in its favor.
  • According to Rorrer, the consequences of forbidding a firefighter from driving an apparatus during an emergency would be minimal. Driving a fire apparatus during an emergency is not a “highly specialized” task or a job requirement that only “a limited number of employees are available” to do.
  • Rather, Rorrer brought forth direct evidence that such an accommodation would be “very easy” for the Department to implement. According to that direct evidence, some Stow firefighters never drive an apparatus “as a matter of choice.” The district court was required to accept this evidence as true.
  • When read in the light most favorable to Rorrer, the record is clearly “mixed” about whether driving an apparatus during an emergency was an essential task for a Stow firefighter.
  • The district court dismissed any relevance to the presence of the term “may,” stating that “Rorrer concedes . . . he could not refuse to drive an apparatus if ordered to do so” and “the record is replete with evidence that no firefighters within Stow were able to opt out of any of the essential functions” detailed in the Department’s job description.
  • An “essential” task, however, is not any task that an employee would feel compelled to perform if ordered to perform it by his or her employer.
  • Prior to Rorrer’s final termination, he sought two accommodations from the City: (1) authorization to continue working as a firefighter without driving a fire apparatus during an emergency, and (2) transfer to the FPB to serve as a fire inspector. The district court erred in finding that, as a matter of law, both of Rorrer’s requested accommodations were unreasonable.
  • The district court based its finding as to driving on the errant premise that no genuine issue of material fact existed about whether driving a fire apparatus during an emergency was an essential function of a Stow firefighter. The law places a significant burden on employers to accommodate an employee’s injuries.
  • Shifting marginal duties to other employees who can easily perform them is a reasonable accommodation.
  • The district court erred in finding that Rorrer’s requested accommodation not to drive during an emergency would place an undue burden on the City.
  • The district court likewise erred in finding that Rorrer’s “claim that Stow failed to engage in the interactive process must . . . fail” because Rorrer never proposed a reasonable accommodation.
  • Rorrer proposed two reasonable accommodations, making a failure to engage in the interactive process an independent violation of the ADA.
  • The parties do not dispute that Rorrer was fit to perform all functions of a firefighter except driving an apparatus during an emergency. Despite evidence that driving an apparatus during an emergency was not an essential function of a Stow firefighter, however, the City apparently never considered accommodating Rorrer

On the ADA retaliation count:

  • Rorrer claims that the City retaliated against him for testifying … in an arbitration proceeding, not for requesting an accommodation for his monocular vision or another act related to his disability. The facts underlying [the arbitration proceeding] do not involve any allegations of discrimination.
  • Rorrer thus cannot establish a prima facie case of ADA retaliation because the ADA does not cover the activity for which he allegedly suffered retaliation.
  • We accordingly hold that the district court did not err when it granted summary judgment to Stow on Rorrer’s ADA retaliation claim.

On the First Amendment claim:

  • The district court … properly dismissed Rorrer’s First Amendment retaliation claim against Chief Kalbaugh and properly granted summary judgment to the City on Rorrer’s First Amendment retaliation claim against it.

The court granted Rorrer’s request to assign a new judge to the case on remand finding that:

  • the district court’s handling of this case was questionable and that reassignment is advisable to preserve “the appearance of justice.”

As I said above, it is important to understand what the Rorrer ruling DID AND DID NOT SAY. The ruling:

DID NOT SAY: A person with monocular vision is fit to be a firefighter

DID NOT SAY: A person with monocular vision is unfit to be a firefighter

DID SAY: Whether a person with monocular vision is fit to be a firefighter is “an individualized inquiry in determining whether an [employee’s] disability . . . disqualifies him from a particular position.”  Blind adherence to NFPA 1582 does not serve as a basis for a negative employment decision.

DID NOT SAY: Driving a fire truck is an essential function of being a firefighter in the Stow Fire Department simply because NFPA 1582 says it is.

DID NOT SAY: A firefighter with monocular vision cannot drive a fire truck

DID NOT SAY: A fire department has an obligation to retain a firefighter with monocular vision

DID NOT SAY: A fire department cannot fire a firefighter with monocular vision

DID SAY: A fire department confronted with a candidate or employee requesting a reasonable accommodation has an obligation to engage in an interactive process. The failure to do so can serve as the basis for a separate violation of the ADA.

The case now goes back to the trial court where Rorrer will have a chance to take his case to a jury.

Here is a copy of the decision:Rorrer v Stow

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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