Diabetic Firefighter Not Covered By Disability Law

Michael Gerow was a firefighter with the City of Saginaw, Michigan. In 1996, Gerow, who had recently discovered that he had diabetes, applied for and received a non-duty disability pension. In 2002, two physicians concurred that Gerow’s condition was such that he was capable of performing his firefighter duties. When the City failed to reinstate him, he filed a lawsuit under the Pensions With Disabilities Civil Rights Act, a portion of which is roughly equivalent to the Americans With Disabilities Act.

While all these proceedings were pending, the City discovered that Gerow had worked as a plumber while on disability status, and asserted it was entitled to reimbursement in the amount of $142,110 in disability payments made to Gerow from 2000 to 2003. When a trial court ruled in favor of the City on all issues, Gerow appealed. The Michigan Court of Appeals upheld the judgment in the City’s favor.

With respect to the disability claim, the Court found that to qualify for protections under the law, an employee must show that an underlying physical condition limits one or more major life activities. The Court found that Gerow could not prove that his diabetes substantially limited one or more major life activities.

The Court observed that “Gerow amply demonstrated his ability to engage in gainful employment. He was merely precluded, based on a concern stemming from a possible risk to Gerow and to others, from working as a firefighter. Notably, a disability that presents or poses a direct threat to the health and safety of other individuals in the workplace which cannot be eliminated through the provision of reasonable accommodations is not protected under the statute. Even if Gerow was capable of performing the duties of a firefighter in spite of his diabetic condition, he was not disabled in accordance with the meaning of the statute because he does not meet the criteria of having a condition that substantially limits one or more major life activities.”

With respect to the Court’s order that Gerow repay the pension fund because of his earnings as a plumber, Gerow contended that he was the first retiree from whom the City’s Pension Board has sought reimbursement and that the Pension Board had treated him more harshly than other retirees with pension overages.

The Court disagreed, pointing out that “Gerow did not come forward with evidence in support of this claim. Contrary to his contentions, a Pension Board member and a Board secretary testified that the Board was unable to pursue pension overage information before 2002 because it lacked sufficient staffing to conduct investigations. Gerow failed to offer evidence of any similarly situated retiree having a pension overage comparable to that which he had. As a result, Gerow has failed to prove retaliatory conduct or disparate treatment by the City in seeking reimbursement.”

Gerow v. City of Saginaw, 2008 WL 203690 (Mich.App. 2008).

This article appears in the March 2008 issue