Labor & Employment Law Daily Forced to retire due to monocular vision, police officer can’t advance disability bias claims
Thursday, March 21, 2019

Forced to retire due to monocular vision, police officer can’t advance disability bias claims

By Marjorie Johnson, J.D.

A fitness-for-duty exam ordered after the officer tested positive for marijuana, and a follow-up with an ophthalmologist, revealed that a prior injury to his eye had left him unable to meet the state-mandated minimum sight standards.

Because he was unable to perform the essential functions of the job, a police officer with monocular vision who could “see nothing” from his left eye following an injury and several surgeries failed to defeat summary judgment on his federal and state-law claims of disability bias and failure to accommodate. Though he claimed he had performed the job for several years despite his vision impairment, and that it was only revealed because he was ordered to undergo a fitness-for-duty exam after he tested positive for marijuana (which he contended he only used for medical purposes), a federal court in Massachusetts refused to question the vision standards promulgated by the state’s HR division, particularly since public safety was involved (Melo v. City of Somerville, March 15, 2019, Stearns, R.).

Eye injury. The officer was hired by the city in 1997 and injured his left eye while on duty in 2002. After multiple surgeries, he returned to work without restrictions in 2003. A few years later he became a station officer, which entailed answering calls, running criminal history checks, and monitoring prisoners. He was also required to be able to perform the essential duties of a police officer.

Marijuana use. By August 2015, he had twice tested positive for marijuana. After entering into a rehabilitation agreement on the first occasion and being disciplined on the second, he was informed that a third positive test would result in termination. On September 22, his captain spoke with him about a report that he had arrived to work smelling of marijuana. The officer explained that he had lost partial vision in his left eye and, as a result, sometimes smoked marijuana to relieve his migraines and pain.

The next day, he was ordered to undergo a drug test and placed on paid leave pending the results. He disputed whether there was “reasonable suspicion” for ordering the test and the city scheduled a hearing for October 1. Instead of participating in the hearing, the officer entered into an agreement with the city requiring him to complete a drug rehabilitation program and pass a fitness-for-duty test.

Fitness-for-duty test. On October 15, the city’s doctor performing the test instructed the officer to follow up with an ophthalmologist. On December 3, an ophthalmologist performed an eye examination and opined that the officer could “see nothing” from his “aphakic” left eye. After reviewing the ophthalmologist’s report, the city’s doctor concluded that because the officer essentially had monocular vision, he was unable to perform the essential functions of a police officer, especially “pursuit driving,” and was therefore unfit for duty. The police chief agreed, and the city decided to terminate him. In lieu of termination, he agreed to involuntary accidental disability retirement, though he claimed he was coerced and threatened into it.

Couldn’t perform essential function. The city conceded he had a disability (monocular vision), but maintained that he was not qualified to perform the essential functions of his job as a police officer. The court agreed, finding that he failed to demonstrate he was otherwise qualified to be a police officer because his monocular vision rendered him incapable of performing the essential functions of the job. In so ruling, it noted that courts generally afford “substantial weight” to an employer’s determination that a job requirement is essential.

Similar case involving firefighter. The district court found guidance from Carleton v. Commonwealth, an opinion handed down from the Massachusetts Supreme Judicial Court involving a candidate for a municipal firefighter’s position who had a hearing impairment. The Carleton court held that he couldn’t prove he was “a qualified handicapped person” because he couldn’t satisfy the hearing standard promulgated by the Commonwealth’s Human Resources Division (HRD). The court declined to review the HRD’s determination that a hearing aid was an unreasonable accommodation because it involved an area where public safety was “paramount,” it was “based on consultations with medical and occupational experts in the field,” it was “not the product of prejudice, stereotypes, or unfounded fear” and it was “ratified by the Legislature.”

Officer didn’t satisfy vision standards. In this case, the HRD had similarly set minimum vision standards for police officers and identified the job’s essential functions. Relevant here, a police officer was considered unfit for duty if he had “uncorrected distance vision worse than 20/100 in either eye” or had “peripheral vision of less than 70 degrees temporally and 45 degrees nasally in either eye.” The officer undisputedly didn’t satisfy this test because, as the ophthalmologist opined, he could “see nothing” out of his left eye. The city’s doctor, in turn, determined that his monocular vision hindered his ability to operate a vehicle at high speeds, which was an essential function of the job.

While the officer argued that pursuit driving was not an essential function as he had satisfactorily performed his duties since 2003 without having to engage in it, the HRD’s determination that it was essential was entitled to considerable deference, particularly because public safety was involved. Additionally, all three independent medical reports prepared for the city’s retirement board, which unanimously voted to approve his involuntary accidental disability application for retirement, similarly determined that he was permanently unable to perform the essential functions of his position, albeit for different reasons.

Failure to accommodate. The officer also failed to advance his claim that the city failed to engage in an interactive dialogue after he requested a reasonable accommodation since no reasonable accommodation existed that would allow him to perform his job and the city was not required to grant his request for permanent light duty. And while he also contended that his use of medical marijuana was a reasonable accommodation, his argument failed since the doctors deemed him unable to perform the essential functions of a police officer because of his monocular vision, not his marijuana use. Indeed, medical marijuana would not remedy his eyesight, only his chronic pain.

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