No ADA Claim for Firefighter Who Was Forced to Retire

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By Kevin McGowan

May 26 — A former Oklahoma firefighter who alleges he was forced to retire because of a back injury lacks an Americans with Disabilities Act claim because he couldn't perform the job's physical demands, the U.S. Court of Appeals for the Tenth Circuit ruled ( Adair v. City of Muskogee , 2016 BL 167668, 10th Cir., No. 15-7067, 5/26/16 ).

Affirming summary judgment for Muskogee, Okla., the court said even if the city regarded Robert Adair as having an impairment, Adair couldn't show he was physically qualified for the job or that the city could reasonably accommodate his lifting restrictions.

The ADA Amendments Act made it easier for individuals to show they were “regarded as” disabled. But even under that more lenient standard, an ADA plaintiff still must show he was qualified to perform the job's essential functions, with or without reasonable accommodation.

A functional capacity evaluation the city required Adair to complete also satisfied the ADA's medical exam requirements because it was job-related and consistent with business necessity, the court said.

Amendments Change ‘Regarded As' Criteria

The district court erred by analyzing Adair's claims under the original ADA, rather than the ADA Amendments Act, which took effect in 2009, the Tenth Circuit said.

Under the ADA Amendments Act, an individual can proceed if he was “regarded as” having an impairment, whether or not the employer perceived the impairment as limiting a major life activity. The ADA Amendments Act overturned court decisions that had strictly interpreted “disability” to block statutory claims.

Under the amended ADA, a plaintiff no longer needs to plead and prove the actual or perceived impairment “substantially limited one or more major life activities,'” Judge Gregory A. Phillips wrote.

The district court therefore erred by dismissing Adair's “regarded as” claim on grounds that his impairment didn't substantially limit him in the major life activity of working, the Tenth Circuit said.

Under the ADA Amendments Act, an individual must show he has an actual or perceived impairment, the impairment is neither transitory nor minor and the employer was aware of and perceived the impairment when it took the alleged discriminatory action.

Under those criteria, Adair could show the city regarded him as having an actual or perceived impairment, the Tenth Circuit said.

Fails to Meet Qualification Standard

But Adair's ADA claim fails because he wasn't a qualified individual with a disability when the city told him to choose between retirement or termination, the court said.

The ADA Amendments Act didn't alter the provision that a “qualified individual” is one who, with or without reasonable accommodation, can perform the “essential functions” of the job he holds or desires.

Adair argued he was “qualified” because he could perform the physical requirements of the hazardous materials director job he held when injured in 2012. The district court improperly applied the city's “no restrictions” standard for firefighter lifting, he argued.

But Oklahoma's state code outlines the essential job functions for firefighter, which include lifting requirements, the court said. After his back injury, Adair's maximal lifting capacity was capped at 105 pounds occasionally and 90 pounds frequently, less than the state requires, the court said.

The city's “no restrictions” policy is tougher than the state standard and therefore an improper qualification standard, Adair argued.

But nothing suggests the fire department has enforced the no-restrictions requirement unreasonably or that it isn't applied consistently, the court said.

“[C]ommon sense should prevail,” the court said. “If a firefighter can lift only 105 pounds occasionally and 90 pounds frequently, the city would substantially risk that firefighter being unable to rescue someone or severely injuring himself during a fire.”

Adair said that during his four years as hazardous materials director, he was never called upon to fight a fire. “But that leaves unchanged the state's requirements applying to all firefighters,” the court said.

But the Tenth Circuit previously has ruled that being able to run and handle a weapon remained essential functions for a police crime scene investigator, the court noted. Even if Adair wasn't normally called upon to fight fires, the city could apply the “essential functions” that apply to all firefighters, it said.

“Regardless of his specialized title, Adair is still a firefighter and seeks to be retained as such,” the court said. “Instead of asking for an accommodation for his lifting restrictions, Adair is essentially asking us to force the city to retain a firefighter who cannot perform essential functions of that job that have been uniformly imposed on every other firefighter in the state. That's not reasonable.”

Judges Neil M. Gorsuch and Nancy Moritz joined in the decision.

Frasier Frasier & Hickman represented Adair. Steidley & Neal represented the city.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at