Employment Disability Discrimination Attorney Best, Top Answers: What if one doctor clear me to work with a disability but my job’s doctor says something different? Can my job stop me from working because I have a disability? What is a reasonable accommodation?
A recent case out of the Sixth Circuit Court of Appeals (which covers Ohio) highlights how some employers will try to discriminate against disabled employees by using a doctor to try and justify their discriminatory conduct.
Nine-year veteran firefighter Anthony Rorrer lost vision in one eye due to a non-work related injury. The Stow Fire Department fired him because of his monocular vision. Rorrer sued under the Americans with Disabilities Act (“ADA”) for discrimination and retaliation (among other claims).
In September 2008, Rorrer’s eye surgeon said he could return to work without restriction. Rorrer arranged a return-to-work physical with fire department physician, Dr. Moten. Dr. Moten was not there for the physical. So, another doctor examined Rorrer, approved a return to work without restriction, and cautioned him about using a self-contained breathing apparatus and high speed driving. Stow City Fire Chief Kalbaugh, however, believed Rorrer was not fit for duty and called Dr. Moten to express his concerns. Kalbaugh told Rorrer to call Dr. Moten back. When he did, the good doctor told him he could not return to work because “fire regs” would not permit it. These “fire regs” are the National Fire Protection Association (NFPA) guidelines, which state monocular vision compromises a firefighters ability to perform an essential job task. But, Rorrer claimed the city never adopted the regulations.
Under the ADA a qualified individual with a disability is someone that can perform the essential job functions with or without reasonable accommodation. The district court granted the City summary judgment, in part, because it believed the fire department adopted the NFPA and under the NFPA, Rorrer could not perform an essential job function. However, the Sixth Circuit disagreed, emphasizing there was plenty of evidence suggesting otherwise. Most importantly, during a deposition Dr. Moten had no idea what the NFPA was or what it contained:
“Rorrer’s counsel asked Dr. Moten what standards he was obligated to follow when evaluating afirefighter’s fitness to work, and Dr. Moten responded, “the department regulations.” Rorrer’s counsel pressed Dr. Moten on the issue:
Question: Which department regs?
Dr. Moten: The Fire’s.
Question: For the City of Stow?
Dr. Moten: Yes.
Question: Any other regs?
Dr. Moten: The Fire regs.
Question: Well that can be anything. What do you mean, Fire regs? Be specific. I want to know exactly what you’re talking about.
Dr. Moten: Let me look.
At that point, counsel for the City intervened and asked to “go off the record a second.” When the deposition restarted, Dr. Moten stated, “The NFPA.” Rorrer’s counsel then asked Dr. Moten if he knew what “NFPA stands for,” and Dr. Moten stated that he did not … Rorrer’s counsel proceeded to question Dr. Moten on what portions of the NFPA he had reviewed. Dr. Moten responded, “I read the medical context of them . . . “ Rorrer’s counsel then asked Dr. Motenwhat “medical context” meant, and he responded, “That’s the exam portion, the requirements of the physicals.” Before Dr. Moten could answer the next question, counsel for the City intervened again, asking, “[B]efore we do this line of inquiry, can we go off the record a second again?” When the deposition restarted, Rorrer’s counsel asked again what NFPA standards Dr. Moten reviewed . . .”
To me, this deposition testimony creates a question of fact. Trial court judges are not supposed to decide questions of fact, but instead give those questions to a jury to decide at trial. This is especially true where there a question of a witnesses credibility, even a doctor. However, the trial judge decided as a matter of law that the high speed driving and breathing apparatus limitations were essential job functions ad dismissed Rorrer’s case. Rorrer appealed and the Sixth Circuit Court of Appeals held: “Determining whether a function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment. … The district court thus erred in prematurely deciding whether driving an apparatus during an emergency was an ‘essential’ function of a Stow firefighter because the evidence creates a genuine dispute about that fact.”
This decision is critical because it limits the ability of judges to simply toss cases out and puts employers at greater risk of getting to a jury and facing adverse judgments. Over the long haul, decisions like these should push up the settlement value of cases by employers that want to avoid these risks.
If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The best option is not to wait. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.
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