Driving Apparatus Not Necessarily Essential Function For Firefighter

Anthony Rorrer worked as a firefighter for the City of Stow, Ohio from May of 1999 until July of 2008. On July 4, 2008, Rorrer injured his right eye in a bottle-rocket accident unrelated to his work as a firefighter, losing all vision in his right eye as a result.

Rorrer’s surgeon later cleared Rorrer to return to work without restriction. After examining Rorrer for approximately 15 minutes, a Department physician told Rorrer he should be able to return to duty without restriction provided that Rorrer should “just be aware of possible limitations as he adjusts to his new vision.”

The Fire Chief balked at Rorrer’s potential return to work, and asked that a different Department physician examine Rorrer. The second physician, without examining Rorrer, told the Chief that there had been a “mistake,” 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.”

The Chief then fired Rorrer, who sued the City under the Americans With Disabilities Act (ADA). The federal Sixth Circuit Court of Appeals recently allowed Rorrer’s suit to proceed.

The Court found that a lower court had erred “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. In the alternative, the lower court gave deference to the Chief’s assertion that this function was essential, finding corroboration in the Department’s internal list of essential functions and Rorrer’s admission that he could not refuse to drive an apparatus if instructed to do so.

“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 second Department physician was not familiar with the NFPA guidelines and did not rely on them in finding Rorrer unfit to serve as a firefighter.

“The District Court also found that, even absent the NFPA guidelines, there was no genuine dispute about whether operating a fire apparatus during an emergency was an essential function of a Stow firefighter. 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, and he is entitled to a trial on the issue.”

Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014).