## Facts

- Robert E. Adair worked as a firefighter for the City of Muskogee, Oklahoma, and injured his back during a training exercise.
- The City required Adair to undergo a functional-capacity evaluation (FCE) that assessed and limited his lifting abilities.
- Adair remained on paid leave for about two years.
- Adair later received a workers’ compensation award stating his lifting restrictions were permanent.
- In the same month as the award, Adair retired from the fire department.
- Adair claimed the retirement amounted to constructive discharge because he was forced to choose between being fired and retiring.
- Adair alleged (1) disability discrimination under the ADA/ADAAA on a “regarded as” theory, (2) an unlawful medical examination under the ADA, and (3) retaliatory discharge under Oklahoma workers’ compensation law.
- The City asserted Adair’s permanent lifting restrictions prevented him from performing essential firefighter duties and that no reasonable accommodation would allow him to do so.

## Issues

1. Whether Adair could prove ADA/ADAAA discrimination on a “regarded as” theory by showing he was a qualified individual able to perform essential firefighter functions with or without reasonable accommodation.
2. Whether requiring the FCE violated the ADA’s limits on employer-mandated medical examinations or was job-related and consistent with business necessity.
3. Whether Adair produced sufficient evidence that his alleged constructive discharge was retaliation for pursuing workers’ compensation benefits, including evidence of pretext.

## Decision

- The Tenth Circuit affirmed summary judgment for the City on all claims.
- The court held that, even assuming Adair was “regarded as” impaired, he failed to show he was a qualified individual because permanent lifting restrictions prevented him from performing essential firefighter functions and he identified no reasonable accommodation.
- The court held the FCE was permissible because it arose from the workers’ compensation process and was job-related and consistent with business necessity.
- The court held the workers’ compensation retaliation claim failed because the City offered a legitimate non-retaliatory reason (permanent inability to meet physical job demands) and Adair failed to show pretext.

## Legal Principles

- ADAAA expansion of “regarded as” coverage does not remove the plaintiff’s burden to prove he is a “qualified individual” who can perform essential job functions with or without reasonable accommodation.
- Essential functions analysis may rely on the actual physical demands of the position; permanent medical restrictions inconsistent with those demands can render an employee unqualified.
- The ADA does not require an employer to eliminate essential job duties or to provide an accommodation that would fundamentally alter the position; reassignment is not required absent an available position that constitutes a reasonable accommodation.
- A post-injury evaluation may qualify as a lawful medical examination when it is job-related and consistent with business necessity, including when used to assess ability to safely perform duties connected to a workers’ compensation claim.
- For retaliation claims, a plaintiff must present evidence that the employer’s stated legitimate reason is pretextual; disagreement with the employer’s assessment of physical capacity is insufficient without evidence of retaliatory motive.

## Conclusion

The Tenth Circuit upheld summary judgment because Adair’s permanent lifting restrictions prevented him from performing essential firefighter duties and he identified no reasonable accommodation, the City’s functional-capacity evaluation was justified by business necessity, and the record did not support a finding that the City’s stated safety-based reason was a pretext for workers’ compensation retaliation.


Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016)