City Not Required By ADA To Offer Light-Duty Accommodation To Fire Investigator

Public safety employees have been notably unsuccessful in convincing courts that their employers should accommodate disabilities by assigning them light-duty work. As learned by Gary Cremeens, a Fire Investigator for the City of Montgomery, Alabama, courts routinely hold that employers have no obligation under the Americans With Disabilities Act to accommodate disabilities that interfere with the employee’s ability to perform the core functions of the job.

Cremeens worked off and on for the City’s Fire Department from 1984 through 2008. In 2002, the City promoted Cremeens to the position of Fire Investigator.

In November 2004, Cremeens was diagnosed with a heart condition called cardiomyopathy. Cardiomyopathy involves an enlargement of a portion of the heart that results in the muscle not pumping as efficiently as it should. Due to his cardiomyopathy, Cremeens missed approximately two weeks from work while having a cardio-defibrillator implanted. Following the surgery, Cremeens’ doctor directed that he could return to performing the duties of a Fire Investigator, but Cremeens could not actually fight fires because it would be too much of a strain on his heart.

From December 14, 2004 until 2008, Cremeens successfully executed his duties as Fire Investigator, and at no time was he called on to actually fight any fires. In 2008, the Department ordered Cremeens to undergo a fitness for duty evaluation. The evaluation indicated that Cremeens could not perform any duties associated with fire suppression or rescue operations. When the City notified Cremeens that it intended to fire him, he applied for retirement and sued the City under the Americans With Disabilities Act.

The Court found that the City was not obligated to continue accommodating Cremeens by assigning him to the Fire Investigator position. The Court started with the observation that the ADA does not require the employer to offer an employee an accommodation if it results in the employee not being able to perform an essential function of the job. In the Court’s eyes, the real question in the case was whether firefighting – the ability to engage in fire suppression – was an essential function of the Fire Investigator position.

The Court sided with the City on the issue, holding: “First, the City considers fire suppression activities to be an essential function of the Fire Investigator position. An assistant chief testified that Fire Investigators are subject to being directed to engage in fire suppression activities by either a superior officer or an on-scene fire commander and would be disciplined if they failed to comply with such direction. Fire Investigators have a responsibility to engage in fire suppression activities without being ordered to do so in emergency situations where the lives of other firefighters or civilians may be in danger.

“Second, the consequences of not requiring Cremeens to perform fire suppression services could be severe. Cremeens’ inability to provide fire suppression services in emergency situations could result in the unnecessary loss of life. Third, fire suppression is a highly specialized function, and Cremeens was specifically trained and equipped to be able to provide suppression services. Fourth, the recent work experience of Fire Investigators indicates that fire suppression is an essential function of the Fire Investigator position. Two other Fire Investigators were required to engage in fire suppression services in the recent past.

“That the situations requiring Fire Investigators to fight fires arise infrequently does not mean fighting fires is an inessential function of the Fire Investigator position. Neither Cremeens nor the City of Montgomery can predict with any accuracy when Cremeens may be required to engage in fire suppression activities. Although Fire Investigators spend a relatively small amount of time fighting fires, which Cremeens concedes he cannot do, the record indicates – and Cremeens has not proven to the contrary – that engagement in fire suppression activities is essential to the Fire Investigator position when the need arises.”

Cremeens v. City of Montgomery, Ala., 2010 WL 3153721 (M.D. Ala. 2010).

This article appears in the November 2010 issue