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Former police officer’s disability discrimination claim reinstated

Posted On: May. 3, 2021 1:41 PM CST


Unilaterally reassigning a disabled employee to a position the employee does not want when another reasonable accommodation exists is inappropriate, a federal appeals court ruled in reinstating a former Virginia police officer’s disability discrimination claim.

Michael Steven Wirtes, who was a police detective for the city of Newport News, was reassigned as a property crimes detective when the heavy, equipment-laden belt he wore in his previous unit caused nerve damage, according to Friday’s ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Michael Steven Wirtes v. City of Newport News.

Mr. Wirtes initially was able to wear a shoulder holster in his new position, but the department changed its rules to require wearing the standard-issue duty belt, and he was put on a light-duty assignment.

 As his allotted eight months of light-duty status drew to a close, he was offered a civilian job as a logistics manager for the police department. The city rejected his proposals to wear his equipment on a shelter or vest holster or that he be exempt from performing patrol duties and from wearing the standard uniform.

He resigned and filed suit against the city in U.S. District Court in Newport News, which ruled in the city’s favor. The ruling was overturned by a unanimous three-judge appeals court panel.

“We take guidance from our sister circuits,” the ruling said.  “Every circuit court to have addressed this issue has concluded that an employer fails to accommodate its qualified disabled employee when it transfers that employee from a position they could perform if provided with reasonable accommodations to a position they do not want,” the ruling said.

“To clarify, we do not hold that an employer can never reassign an employee when there exists a reasonable accommodation that will keep the employee in their current and preferred position.

“That broad question is not before us.  Nor should this opinion be read in any way to restrict the ability of employers and employees to agree to a voluntary transfer.

“Rather, we simply reiterate that reassignment is strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation, and that reassignment should therefore be held in ‘in reserve for unusual circumstances,’” it said, in citing an earlier ruling and remanding the case for further proceedings.

A city attorney did not respond to a request for comment.