City Faces Trial in Officer’s ADA Suit

A former bicycle patrol officer who was diagnosed with chronic regional pain syndrome and had surgery to implant an electrical pain control device may try his claim that defendant police department violated the Americans with Disabilities Act by terminating him instead of transferring him to a position as an evidence technician; the Roanoke U.S. District Court denies the city’s motion for summary judgment.

The city asserts that its failure to provide plaintiff with the requested accommodation – a transfer to a position as a detective or an evidence technician – did not violate the ADA because plaintiff could not perform the essential functions of any law enforcement position with or without reasonable accommodation. The court concludes genuine issues of material fact preclude summary judgment on this claim.

According to the city, all sworn law enforcement officers, including evidence technicians, must be able to perform essential law enforcement activities such as enforcement of the law, arresting criminal suspects and responding to the aid of citizens and fellow law enforcement officers. The written job description for the evidence technician position likewise lists making arrests and performing patrol duties when necessary as job responsibilities. Thus, in the city’s view, plaintiff was not qualified to work as an evidence technician, as he could not perform all of the “essential functions” of that job.

Plaintiff has produced evidence tending to show that evidence technicians rarely use force or effectuate arrest, suggesting that those job functions are only “marginal” to that position. A reasonable juror might find the city could have reasonably accommodated plaintiff’s disability by reassigning him to the evidence technician position and reallocating those marginal functions to other officers as needed.

The city has not cited the decisions in which other district courts in this circuit have found that the ability to make a forcible arrest is an essential function of all law enforcement positions. The court believes these cases are distinguishable in any event.

Plaintiff has produced evidence showing that he satisfied the physical qualifications necessary to be a law enforcement officer and could perform physical tasks on occasion. Defendants in the other cases had written policies requiring all officers to make forcible arrests or otherwise limiting light-duty assignments. The city has pointed to no such written policy here, and plaintiff has produced evidence suggesting that at least one other city police officer was assigned to a position not requiring him to effectuate arrests or perform other physical function in order to accommodate his disability.

The city also argues plaintiff was not “otherwise qualified” for the evidence technician position because he did not have the necessary training. However, plaintiff testified that the evidence technician position advertised at the time he sought accommodation did not require any particular training or certification. The court cannot conclude on the current record that plaintiff could not have obtained the requisite training in the time that lapsed between when he requested accommodation and when the evidence technician position was filled.

Wilburn v. City of Roanoke (Conrad) No. 7:14cv255, Aug. 4, 2015; USDC at Roanoke, Va. VLW 015-3-384, 9 pp.