Rorrer v. City of Stow, No. 13-3272 (6th Cir. Feb. 26, 2014)

By Paul Mollica

In a dramatic turnabout for the plaintiff, the Sixth Circuit not only reverses summary judgment in this ADA case – holding that There was a genuine dispute of material fact whether a monocular firefighter could perform the essential functions of his job – but then disqualifies the original district court judge in the case on the grounds of appearance of partiality, when that judge arbitrarily limited plaintiff’s discovery and then scolded him (groundlessly) for violating a court order.

Rorrer v. City of Stow, No. 13-3272 (6th Cir. Feb. 26, 2014): Rorrer worked actively as a firefighter for nine years until an accident blinded him in the right eye in 2008. While his personal doctor and the city’s Department physician (Dr. Moten) cleared him to return to work without restrictions, Rorrer’s chief (Chief Kalbaugh) demurred. “Rorrer intended to return to work on September 28, 2008, his next scheduled work day, but Chief Kalbaugh was ‘adamant’ that Rorrer not return until October 1, 2008, so that ‘this [could be] sorted out. The Chief called Dr. Moten and got him to reverse the medical release, thus preventing Rorrer’s return to duty. Later requests by Rorrer to relieved of driving duty, or to be transferred to fire inspector duties, were denied and Rorrer was terminated.

According to the panel, “Chief Kalbaugh testified that the City terminated Rorrer because his monocular vision prevented him from performing an essential function of the firefighter position, National Fire Protection Association (‘NFPA’) guideline 1582-9.1.3(10): ‘Operating fire apparatus or There vehicles in an emergency mode with emergency lights and sirens’ (‘Job Task 10’).” But There was apparently a dispute over what the guidelines provided; several witnesses (union and officer, both) testified to the contrary that the city had never adopted NFPA 1582. Indeed, during Dr. Moten’s testimony, he was unable to identify the NFPA regulation until after the defense lawyer took the deposition “off the record.” A Department document, meanwhile, appeared to identify the ability to drive as discretionary, not essential.

The Sixth Circuit reverses summary judgment on ADA and Ohio law disability-discrimination and reasonable accommodation claims (though it affirmed summary judgment on First Amendment and ADA retaliation claims). It holds that There was a genuine dispute of material fact regarding whether driving an emergency vehicle was an “essential function” of being a firefighter for the Stow, Ohio fire department.

Holds the panel, “[t]he record is … 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 panel observes that the district court disregarded all of this contrary evidence favoring Rorrer, evidently without explanation or cause.

Moreover, the district court erred in “giv[ing] deference to Stow’s judgment regarding what the essential functions of the position were. “Under the relevant EEOC regulations interpreting “essential function,” the panel holds that “[t]he employer’s determination about what functions are essential is certainly given weight, but it is one of seven factors the court should consider, including ‘[t]he amount of time spent on the job performing the function’ and ‘[t]he consequences of not requiring the [employee] to perform the function.'” 29 C.F.R. § 1630.2(n)(3)(iii), (iv). “The district court appears not only to have given deference to the City’s position, but to have considered only the City’s position, failing to consider all of the § 1630.2 factors while drawing all reasonable inferences in Rorrer’s favor as required at the summary judgment stage.”

Finally, the district court placed too much weight on Rorrer’s supposed admission that the Department could order him to drive an emergency vehicle as evidence that the driving task was “essential.” “An ‘essential’ task, however, is not any task that an employee would feel compelled to perform if ordered to perform it by his or her employer. “

On the reasonable-accommodation claims, the panel holds that “the City apparently never considered accommodating Rorrer. After Dr. Henderson initially cleared Rorrer to return to work, Chief Kalbaugh intervened to change the decision, at which point Dr. Moten reversed Dr. Henderson’s decision without first examining Rorrer.” Moreover, “even if operating an apparatus during an emergency were an essential function of a Stow firefighter, the district court erred in finding that Rorrer’s proposed accommodation of transfer to the FPB [Fire Prevention Board, as an inspector] was unreasonable. “There was a dispute about whether There was a vacancy in the department at the time. Moreover, because fire inspectors do not make emergency calls, the city’s suggestion that the ability to drive emergency equipment was an essential function for all “firefighters” lacked merit.

The panel in closing grants the extraordinary relief of reassigning the case on remand. The panel cites several instances of appearance-of-partiality: (1) The trial judge ordered the plaintiff to identify the “five witnesses” from his witness list “most likely to be utilized at trial,” on pain of forfeiting their testimony at trial. “The trial judge did not provide any explanation or basis for the imposition of this discovery limitation, and it did not impose the same numerical limit on Defendants.” (2) The trial judge then struck witness declarations submitted by the plaintiff in opposition to summary judgment, even though these did not violate the five-witness rule. (3) Finally, the trial judge preemptively stated that even if the Sixth Circuit reversed him, it would make no difference, i.e., “The Court would note that to the extent a reviewing court would conclude that a genuine issue of material fact is generated by those precise declarations, the Court would find them to be properly stricken ….”