Firefighter Loses ADA Claim

Robert Adair was a firefighter with the City of Muskogee, Oklahoma. Adair injured his back during a training exercise. As a result of his injury, Adair completed a functional-capacity evaluation that measured and limited his lifting capabilities. After two years on paid leave, Adair received a workers’ compensation award definitively stating that Adair’s lifting restrictions were permanent. The same month he received his award, Adair retired from the Muskogee Fire Department.

Adair later filed a lawsuit, contending that his retirement was a constructive discharge, and that the City violated the Americans With Disabilities Act by forcing him to choose between being fired and retiring. After a federal trial court dismissed the lawsuit, Adair appealed.

The federal Tenth Circuit Court of Appeals upheld the dismissal of Adair’s suit. The core of Adair’s claim was that while his lifting restrictions prevented him from being a line firefighter, they did not interfere with work he had performed for years as a HazMat director. The Court rejected Adair’s argument.

The Court found whether an individual is a “qualified individual with a disability” who is protected by the ADA involves a two-part inquiry: “First, we ask whether the employee can perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. And second, if we conclude that the employee is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions.

“Here, Adair contends that he is qualified for the position he seeks because he can perform the physical requirements of his job as the HazMat Director – indeed, he asserts that he ‘is (and was) capable of doing his job for Defendant. However, the Oklahoma Administrative Code has outlined the essential functions of a firefighter and incorporates a lifting requirement into that description. In its description of essential functions of all eligible firefighters, the Code provides that all firefighters must be able to search, find, and rescue-drag or carry victims ranging from newborns up to adults weighing over 200 pounds to safety despite hazardous conditions and low visibility.

“The functional-capacity evaluation determined that Adair’s maximal lifting capacity was capped at only 105 pounds occasionally and 90 pounds frequently. Obviously, that’s less than what Oklahoma requires for its firefighters.

“Importantly, the risks involved in firefighting strike at the heart of another factor used to determine whether a job function is essential: the consequences of not requiring an employee to perform the function. Here, common sense should prevail. If a firefighter can lift only 105 pounds occasionally and 90 pounds frequently, the City would substantially risk that firefighter’s being unable to rescue someone or severely injuring himself during a fire. Indeed, the federal regulations even mention the dire consequences of a firefighter being unable to perform essential functions of the job: ‘Although a firefighter may not regularly have to carry an unconscious adult out of a burning building, the consequence of failing to require the firefighter to be able to perform this function would be serious.’

“Given his back injury and the doctors’ findings, Adair no longer has an ability to perform the state-mandated essential functions of a firefighter. As we have said in the past, we are reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.

“The Department, the City, and the State of Oklahoma have weighed the risks of a firefighter’s inability to respond when necessary and decided that fire rescue is an essential function for all firefighters, even for those with specialized roles. We will not second guess their decision.”

Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016).