Wirtes v. City of Newport News, 043021 FED4, 19-1780

Docket Nº19-1780
Opinion JudgeWYNN, CIRCUIT JUDGE
Party NameMICHAEL STEVEN WIRTES, Plaintiff - Appellant, v. CITY OF NEWPORT NEWS, Defendant-Appellee, and NEWPORT NEWS POLICE DEPARTMENT (Government Agency), Chief of Police; RICHARD MYERS, Chief of Police (Individual); STACY KELLY, Assistant Chief Kelly (Individual), Defendants.
AttorneyJoshua L. Jewett, Aaron D. Siegrist, Julia A. Rust, PIERCE MCCOY, PLLC, Norfolk, Virginia, for Appellant. Adonica Baine, Darlene P. Bradberry, OFFICE OF THE CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News, Virginia, for Appellee.
Judge PanelBefore GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Case DateApril 30, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (4th Circuit)

MICHAEL STEVEN WIRTES, Plaintiff - Appellant,

v.

CITY OF NEWPORT NEWS, Defendant-Appellee,

and

NEWPORT NEWS POLICE DEPARTMENT (Government Agency), Chief of Police; RICHARD MYERS, Chief of Police (Individual); STACY KELLY, Assistant Chief Kelly (Individual), Defendants.

No. 19-1780

United States Court of Appeals, Fourth Circuit

April 30, 2021

Submitted: January 29, 2021

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Lawrence Richard Leonard, Magistrate Judge. (4:18-cv-00015-LRL)

Joshua L. Jewett, Aaron D. Siegrist, Julia A. Rust, PIERCE MCCOY, PLLC, Norfolk, Virginia, for Appellant.

Adonica Baine, Darlene P. Bradberry, OFFICE OF THE CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News, Virginia, for Appellee.

Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

WYNN, CIRCUIT JUDGE

Michael Steven Wirtes sued his former employer, the City of Newport News ("the City"), alleging that it failed to accommodate his disability in violation of the Americans with Disabilities Act ("ADA"). According to Wirtes, the City concluded that he could not perform the essential functions of his job as a detective and then offered him the options of either retiring early or accepting reassignment to a civilian position he did not want. Wirtes reluctantly retired early and then filed suit. The district court granted the City's motion for summary judgment, finding that because Wirtes was offered reassignment, he could not make out a prima facie failure-to-accommodate claim under the ADA.1

We vacate and remand for further consideration in light of our conclusion that it is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position.

I.

The undisputed facts show that American police officers are often required to carry the tools of their trade on "heavy and uncomfortable" duty belts that officers wear around their waists. J.A. 73-74.2 Nationwide, "[t]he problem of . . . duty belt discomfort is a significant health and safety issue for uniformed personnel," causing a range of maladies including back and hip pain and paresthesia, J.A. 75-76, the latter of which is "a burning or prickling sensation that is usually felt in the hands, arms, legs, or feet, but can also occur in other parts of the body," Burton v. Parks, No. 11-cv-14768, 2012 WL 3667967, at *2 n.1 (E.D. Mich. May 29, 2012) (citation omitted).

Wirtes was employed as a police officer with the Newport News Police Department ("Police Department") from September 1997 until September 2016. During that time, he wore duty belts supporting pepper spray, a gun with ammunition, a taser, a baton, handcuffs, a flashlight, a radio, and a body camera battery pack.

From 2006 through 2010, Writes felt increasing pain and discomfort when wearing his duty belt. In February 2011, Wirtes notified Police Chief James Fox that he had "permanent nerve damage called meralgia paresthetica, which caused discomfort, pain, numbness, and tingling to his waist, left leg, and thigh area, which was caused by the wearing of his police duty belt."3 J.A. 413 (cleaned up).

In response, the Police Department asked Wirtes to undergo a fitness-for-duty evaluation, the stated purpose of which was to determine if his condition required accommodation under the ADA. That examination revealed that he suffered from left thigh meralgia paresthetica. The examination also found that "[f]unctionally, [Wirtes had] no motor/strength deficits that would prevent him from working as a police officer," that "[h]is biggest limitation [was] his tolerance of [his] police duty belt," and that "[h]is ability to use a police duty belt [was] dependent on his tolerance to the paresthesias he states he has with it." J.A. 445.

A few months later, Wirtes informed the City that his meralgia paresthetica appeared to be permanent and that while he wished to continue serving as a police officer, his ability to wear a duty belt would be limited. He therefore asked the City for reassignment to a unit-like white collar crimes or traffic light enforcement-that would allow him to serve as a police officer without needing to wear the full duty belt. The City obliged. In September of 2011, Wirtes was transferred from a position as a patrol officer in Newport News's Central Precinct to the City's Records Unit.4 During his time in the Records Unit, Wirtes wore a shoulder holster instead of a full duty belt.

In January 2014, Richard Myers replaced Chief Fox as head of the Police Department. That March, Chief Myers ordered Wirtes to be transferred to the North Precinct Property Crimes Investigation Unit to serve as a detective. This transfer was not bad news for Wirtes's meralgia paresthetica because at the time, property crimes detectives were permitted to wear "plain clothes" and were not required to wear duty belts. J.A. 779. Wirtes continued to wear a shoulder holster.

In August 2015, in response to reports that Wirtes was wearing "a type of belt that [went] around his waist [during] recent duties," the Police Department had him undergo another fitness-for-duty medical evaluation to determine whether he was able to wear a duty belt.[5] J.A. 463. The doctor who examined Wirtes found that he could not, and further concluded that he was "unable to perform assigned duties as a police officer due to an inability to wear the uniformed required duty belt . . . due to a medical condition." J.A. 468.

Around the same time, Chief Myers instructed Assistant Chief Stacy Kelly- Wirtes's supervisor in the Property Crimes Investigation Unit-to increase the number of officers patrolling Newport News. In response, Assistant Chief Kelly required the property-crimes detectives under his command to start wearing their uniforms and taking evening patrol shifts. These new responsibilities, to wear uniforms and to go on patrol, did not apply to all detectives in the city. For example, detectives in the Investigation Bureau were not subjected to these additional requirements.

The City also made two alterations to its human resources policies in the fall of 2015. First, it revised the job description for police officers to state that all officers "[m]ust be able to wear a standard issued duty belt with all applicable gear." J.A. 606. Second, it "revised its light duty policy . . . to limit . . . non-occupational light duty assignment[s]" to eight months. J.A. 649. Following these changes, on November 9, 2015, Wirtes was put on light-duty status due to his alleged "inability [to] meet the essential job functions" of his position as a police officer. J.A. 675.

In June 2016, as Wirtes's allotted eight months of light-duty status drew to a close, the City wrote to him, noting that wearing a duty belt was an essential function of serving as a police officer. The City's letter also asked Wirtes to produce a list of potential accommodations or alternatives that would allow him to perform that essential function. In response, Wirtes restated that he could not wear a standard duty belt around his waist and requested the accommodation of relocating his equipment to a shoulder holster-the same type of holster he had been using since 2011. Wirtes also stated that he could add "a holster to [his] ballistic vest for . . . high risk assignments." J.A. 502. Alternatively, Wirtes proposed that he be exempt from the requirement to wear a standard uniform and from patrol duties.

In July, the City rejected Wirtes's proposal to wear his equipment on a shoulder or vest holster, citing "the need to be in full police uniform" and safety concerns. J.A. 524. It further rejected Wirtes's proposal to be exempt from performing patrol duties and from wearing the standard uniform, viewing these suggestions as unacceptable requests for a permanent light-duty assignment.

On July 26, the City offered Wirtes a civilian job as a logistics manager in charge of procuring supplies and vehicles for the Police Department. Wirtes rejected the offer, stating that he wished to continue working as a detective and explaining that he wanted a final decision on his accommodation request before transferring to a different job. The City later emailed Wirtes to give him a final chance to accept the logistics manager position, setting a deadline of September 6 for him to choose between taking that civilian job or exercising his right to retire.6

On decision day, Wirtes wrote the City to suggest a salary increase for the logistics manager position. The City agreed, and Wirtes accepted the civilian position on September 7. But shortly thereafter, Wirtes wrote the City again, announcing his retirement-which he claimed was "forced under medical reasons"-and lamenting that the City and the Police Department "had chosen not to provide [a] reasonable accommodation based on [his] medical disability that would have allowed [him] to remain employed as a sworn police officer/detective." J.A. 491.

Wirtes, proceeding pro se, filed an original and first amended complaint against the City and related parties in February 2018. Then on April 24, 2018, he filed his second amended complaint-the operative complaint here-alleging that the City failed to accommodate his disability.7 The City moved for summary judgment and the district court granted its motion. Wirtes timely appealed.

II.

"We review the district court's grant of summary judgment de novo, 'using the same standard applied by the district court.'" Goodman v. Diggs, 986 F.3d 493, 497 (4th Cir. 2021) (quoting Brooks v. Johnson, 924 F.3d 104, 111 (4th Cir. 2019)). "In doing so, we...

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