Eldredge v. City of St. Paul (809 F. Supp. 2d 1011, 2011)

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Defendants’ Motion for Summary Judgment [Doc. No. 152], Plaintiffs Motion to Exclude Expert Testimony [Doc. No. 158], and Plaintiffs Motion for Summary Judgment on Liability [Doc. No. 165]. For the reasons set forth herein, the motions are denied.

I. FACTUAL BACKGROUND

The City of St. Paul and the St. Paul Department of Fire and Safety Services (“Defendants”) hired Plaintiff William Eldredge as a firefighter in 1994. (Compl. ¶ 10; Answer ¶ 10.) Eldredge is an honorably discharged member of the United States Armed Forces, with which he had served as an officer for many years, holding such positions as intelligence analyst, civil affairs specialist, interrogator and radio communications officer. (Eldredge Dep. at 14-17, Defs.’ Ex. 2; VPA Hrg. Tr. at 101, Defs.’ Ex. 1.) He also holds a law degree and has worked as an attorney. (Id.; VPA Hrg. Tr. at 101, Defs.’ Ex. 1.)

In approximately 1991, Eldredge was diagnosed with a form of macular degeneration known as Stargardt’s Disease Macular Dystrophy, which causes a small blind spot in the center of his field of vision. (Compl. ¶8; see also Allen Report at 2, Ex. D to PL’s Daubert Mem.) Eldredge is unable to read small print without magnification, has certain driver’s license restrictions, and experiences central field of vision distortion. In February 2003, Plaintiffs ophthalmologist, Dr. Joseph Terry indicated that Eldredge’s corrected visual acuity in the right eye was 20/200, and in the left eye was 20/40. (VPA Hrg. Tr. at 138-39, Pl.’s Ex. 1.)

During his fire training course with the City of St. Paul, Plaintiff commented on his eye condition (Monogue Dep. at 37, PL’s Ex. 90), and although he took a preemployment physical, his condition did not preclude his 1994 employment with Defendants. (VPA Hrg. Tr. at 141-42, PL’s Ex. 1.) Despite his medical diagnosis, Plaintiff received positive reviews and/or informal assessments of his work performance. (Carter Dep. at 139, PL’s Ex. 95; Hogan Dep. at 25, PL’s Ex. 96; Monogue Dep. at 42, PL’s Ex. 90; Butler Dep. at 39, PL’s Ex. 91; Cook Dec. ¶¶ 3-4; Lecuyer Dec. ¶¶ 18-20; Performance Appraisal Report, PL’s Ex. 4.) Former St. Paul Fire Captain, Dennis Goyette testified that when he supervised Eldredge during his tenure at Company 23, Eldredge voluntarily completed a department-wide survey indicating that he did not wish to drive departmental vehicles. (VPA Hrg. Tr. at 98-99.) Goyette further testified that Eldredge completed the survey in that manner because ‘he knew his limitations’ and had safety concerns about driving departmental vehicles. (Id. at 99.)

In 2004, Defendants received a grant to conduct routine medical screenings which were performed by occupational health physician Fozia Abrar. (See Morehead Dep. at 42, PL’s Ex. 100; Haltiner Dep. at 53, PL’s Ex. 99.) As part of the screening, in approximately July 2004, Eldredge was to have his vision tested. Dr. Abrar did not personally examine Plaintiffs eyes, although Eldredge met with a nurse. (VPA Hrg. Tr. at 295-96, PL’s Ex. 1; Eldredge Dep. at 164-65, Defs.’ Ex. 2.) He objected to the form of the examination which involved a tube-like examination instrument with which he had had difficulty in the past. Eldredge contends after he refused to look into the machine, the nurse did not complete the examination. (Eldredge Dep. at 164-65, Defs.’ Ex. 2.) Although Dr. Abrar did not meet with Plaintiff, she nonetheless reviewed his medical records and issued a report finding that Eldredge’s corrected visual acuity was 20/200 in the right eye and 20/100 in the left eye. (Letter of 7/29/04 from F. Abrar to A. Carter, PL’s Ex. 6.)

Dr. Abrar completed a medical monitoring summary and recommended “no firefighting or driving duties, pending further evaluation,” and suggested an ophthalmology consultation. (Medical Record, PL’s Ex. 5.) In a letter sent to Assistant Fire Chief Tony Carter, Dr. Abrar reiterated the recommendation of “no firefighting or driving duties.” (Letter of 7/29/04 from F. Abrar to A. Carter, PL’s Ex. 6.) Dr. Abrar indicated that her recommendations were based on a review of Plaintiffs medical records, Defendants’ stated essential functions of the firefighter job, and the National Fire Protection Association’s (“NFPA”) vision standards. (Id.) Among the records she reviewed was a February 18, 2003 ophthalmology evaluation by Dr. Terry, who found that Plaintiff had corrected visual acuity of 20/200 in his right eye and 20/40 in his left eye. (Id.) As of May 2007, the City had not followed up on Dr. Abrar’s recommendation that Eldredge con-suit with an ophthalmologist. (Veteran’s Pref. Hrg. Tr. at 38-39, Defs.’ Ex. 1.)

A. Move to “Light Duty” Work

After receiving Dr. Abrar’s recommendation, Assistant Fire Chief Anthony Carter met with Eldredge and his union representative to discuss Eldredge’s employment. (Carter Dep. at 59, 61-63, PL’s Ex. 95; Leitner Decl. ¶4.) Eldredge recalls that Chief Carter informed him that it was “too bad” he could no longer be a firefighter, “ ‘but maybe he could find something else to do.’ ” (Eldredge Dep. at 263-64.) Plaintiff told Carter that he was entitled to the protections of the Minnesota Veteran’s Preference Act (“VPA”) and also the Americans with Disabilities Act (“ADA”). (Id.) Eldredge requested that he be permitted to work as a firefighter with the use of a hand magnifier for any incidental reading and requested permission to not drive departmental emergency vehicles.

Defendants assigned Eldredge to the Fire Department’s training unit for “light duty” work on an interim basis, removing him from active firefighting duties. (Holton Dep. at 68, Defs.’ Ex. 8.) Plaintiff testified that Assistant Fire Chief Jay Monogue told him that he did not qualify for the ADA because he was not sufficiently disabled and that Chief Carter rolled his eyes at the invocation of the ADA, saying “ ‘just go with the training [position]’ and that was it.” (Id. at 263.) Defendants do not have full-time permanent light-duty positions for personnel and view a position in the training unit as temporary when, through disease or injury, firefighters are unable to perform their primary job duties. (Veteran’s Pref. Hrg. Tr. at 39-40.) Plaintiff, however, testified in his deposition that he knew of at least one other former firefighter who was assigned to a training position for approximately six or seven years until his eventual retirement. (Eldredge Dep. at 264.) Assistant Fire Chief Jay Monogue described the circumstances in which firefighters were placed on light-duty assignment as more of a “mind-set” than a bona fide policy. (Veteran’s Pref. Hrg. Tr. at 40.) He stated that the policy was only written down insofar as the City sent letters to affected employees notifying them of their change in status. (Id. at 40^41.) In order to turn a temporary position into a permanent position, Chief Monogue stated that the department would have to justify the need for the position to the City’s budget office, write job specifications for the position, advertise the position and interview applicants. (Id. at 71-72.) Fire Chief Timothy Butler conceded that transforming a temporary training position into a permanent position was an “option,” but it would require obtaining a waiver from the City’s finance director due to a hiring freeze. (Butler Dep. at 114-15, Defs.’ Ex. 10.) Moreover, when asked at his deposition if Eldredge could work as an audiovisual (“AV”) technician, Chief Butler testified that other departmental jobs needed to be created “over and above an AV technician position,” and while creating such a position was an option, “it’s a very low priority option and not likely to happen.” (Id. at 115.)

While working in the training position, Plaintiffs supervisor, Deputy Chief of Training Keith Morehead, testified that Plaintiff used his firefighter skills frequently. (Morehead Dep. at 105, PL’s Ex. 100.) He set up fire simulations, went into dark, smoky burning areas and successfully maneuvered around, checked safety equipment and hauled mannequins into burn areas. (Id. at 106-07.) Assistant Chief Mike Hogan testified that Plaintiff facilitated live fire scenarios in their training building and videotaped such exercises. (Hogan Dep. at 40-44, PL’s Ex. 96.) Plaintiffs supervisors and colleagues found that he performed well in the training position. Chief Morehead testified that Eldredge was “a great asset to the training division,” describing him as productive, responsible and reliable, and as “someone who worked tirelessly on any kind of task that you would ask him to do.” (Morehead Dep. at 84-85, PL’s Ex. 100.)

In August 2006, Defendants scheduled a fitness-for-duty examination for Eldredge. (Letter of 8/10/06 from D. Holton to B. Eldredge, PL’s Ex. 9.) Occupational Health physician Chang-Jiang Zheng performed the examination. (Medical record of 9/11/06, PL’s Ex. 10.) Dr. Zheng reviewed “prior notes from ophthalmology clinic” and noted that Eldredge’s vision was “20/70 in one eye and 20/100 in the other” and that his eye condition had been stable for two years. (Id. at 1-2.) He did not conduct an eye exam. (Id. at 2, noting “eye exam deferred today.”) Dr. Zheng recommended that Eldredge return to work, subject to the restrictions of not driving a fire engine and not working in a safety-sensitive position. (Id. at 2.)

B. Termination Notice: November 14, 2006

In November 2006, Defendants sent notice of their intent to terminate Plaintiffs employment as a firefighter. (Letter of 11/14/06 from D. Holton to B. Eldredge, PL’s Ex. 11.) In the letter notifying Plaintiff of the intent to terminate, Fire Chief Holton referred to Dr. Zheng’s recommendations, the NFPA standards, and the need for firefighters to have adequate vision to read essential information. (Id.) In light of his status as an honorably discharged military veteran, Eldredge was entitled to request a hearing on the reasonableness of his removal pursuant to the Minnesota VPA, Minn.Stat. § 197.447.

Prior to any hearing, Eldredge requested a meeting with Chief Holton to discuss the intent to terminate his employment. (Email of 11/21/06 from B. Eldredge to Holton, PL’s Ex. 12.) (Letter of 12/7/06 from Holton to B. Eldredge, PL’s Ex. 13.) At the December 4, 2006 meeting, Eldredge stated that neither Dr. Abrar nor Dr. Zheng personally examined his eyes, and expressed his view that neither physician was qualified to provide an opinion on how his eye condition impacted firefighting. (Email of 12/5/06 from J. Monogue to D. Holton, PL’s Ex. 14.) Eldredge stated that his objective was to return to work as an active firefighter, but if not that, to work in some capacity with the Fire Department. (Id.) He proposed finding a better-qualified doctor to provide an assessment of his condition as it related to firefighting. (Id.) Chief Holton indicated that even with any additional testing or evaluating, he would not overrule a physician’s restrictions because of potential liability to the City. (Veteran’s Pref. Hrg. Tr. at 69, Defs.’ Ex. 1.) In Defendants’ Rule 30(b)(6) deposition, Senior Human Resources Consultant Terry Haltiner testified that Defendants did not provide any job-related testing of Eldredge’s work ability “[bjecause his situation requires a medical opinion, it’s a medical determination, and the medical providers determined that no further testing was required.” (Defs.’ 30(b)(6) Dep. at 52-53.)

Following the December 4, 2006 meeting, Chief Holton communicated his intent to proceed with Eldredge’s termination. (Letter of 12/7/06 from D. Holton to B. Eldredge, PL’s Ex. 13.) While Holton acknowledged Eldredge’s plan to seek out a doctor more qualified to opine on his eye condition as it related to the work conditions, functions and standards of the firefighter position, he also reminded Plaintiff of the 60-day period in which he needed to seek a hearing on the intent to terminate. (Id.)

In April 2007, Optometrist Jenny O’Malley from the Phillips Eye Institute evaluated Eldredge’s rehabilitation potential. (Letter of 4/30/07 from J. O’Malley to W. Eldredge, PL’s Ex. 15.) Dr. O’Malley examined Eldredge and recorded aided distance visual acuity of 20/200 for the right eye and 20/80 for the left eye. (Id.) She found that his unaided near visual acuity was 20/100, and with the aid of a 4x telescope and 20 diopter hand or stand magnifier, his vision improved to 20/25 or 1.0M. (Id.) She reviewed the vision requirements that Eldredge forwarded to her, which, as Eldredge testified, included the NFPA vision standards and the City’s job description for the position of firefighter. (Veterans’ Pref. Hrg. Tr. at 226-27, PL’s Ex. 2.) Dr. O’Malley recommended accommodations and a practical skills assessment:

With the use of the devices listed above, Mr. Eldredge does meet the vision requirements he has forwarded to me. Due to his vision loss, he does not meet the requirements for an unrestricted driver’s license in the state of Minnesota. Please evaluate his ability to perform the tasks associated with his position while using these devices. Occupational Therapy was recommended and completed.

(Letter of 4/30/07 from J. O’Malley to W. Eldredge, PL’s Ex. 15.) Defendant’s Rule 30(b)(6) deponent Haltiner testified that Defendants did not implement O’Malley’s suggestions because she was not an occupational health specialist. (Rule 30(b)(6) Dep. at 135-36, PL’s Ex. 97.)

C. First Charge of Disability Discrimination Filed with MDHR

On April 27, 2007 Plaintiff filed his first charge of disability discrimination with the Minnesota Department of Human Rights (“MDHR”). (Charge of Discrimination, PL’s Ex. 18.) Eldredge claimed that the City’s November 2006 intent to terminate him was discriminatory, because with a reasonable accommodation, he could perform the essential duties of a firefighter. (Id.) He noted that the NFPA standards recommend an individualized evaluation for vision disabilities and that the City had denied any such evaluation. “Despite being aware that I am able to successfully perform the essential duties of a firefighter and that my assignment as an Audio Video Technician is a reasonable accommodation for my disability, the City has not withdrawn its notice of intent to terminate me.” (Id.)

The MDHR found probable cause to credit Eldredge’s allegations that Defendants sought to terminate Eldredge on the basis of his disability and in violation of the Minnesota Human Rights Act (“MHRA”). (MDHR Mem. at 3, PL’s Ex. 19.) Specifically, the MDHR found evidence sufficient to show that, by removing Eldredge from his firefighter position, Defendants refused to allow him to perform the job using mitigating devices, as needed, for his visual impairment. (Id. at 2.) “The greater weight of the evidence showed that the charging party was a qualified disabled person, in that he is disabled and able to perform the essential functions of being a firefighter and of being a Video Technician, with reasonable accommodation, as needed.” (Id.)

D.St. Paul Civil Service Commission 2007 Ruling on the Merits

The St. Paul Civil Service Commission conducted the VPA Hearing on May 1, 2007 and August 1, 2007 regarding Plaintiffs November 2006 termination notice. The Commission issued a ruling in Plaintiffs favor on December 3, 2007, finding that “[t]here was no convincing testimony to support that Mr. Eldredge is incompetent to perform the specific duties of a firefighter.” (Findings of Fact, Conclusions & Order, Conclusion ¶5, Defs.’ Ex. 17.) The Commission acknowledged Dr. Abrar’s testimony that Plaintiffs vision was not up to NFPA standards and her opinion that he could not lift or carry heavy objects, perform searching and finding and could not operate a fire engine or emergency vehicle in an emergency. (Id. at ¶¶ 15-16, Defs.’ Ex. 17.) However, the Commission also noted that Abrar testified that that she did not know whether firefighters are required to operate emergency vehicles, nor did the City offer any other testimony to support these activities (driving, lifting or carrying of heavy objects, searching and finding) as requirements of the job. (Id. ¶ 17.) The Commission also found “There was testimony that the City of Saint Paul has not adopted NFPA standards, although it accepts some of the standards as guidelines. No testimony was offered on the specific duties as a firefighter that Mr. Eldridge could not perform.” (Id. ¶ 8.) Overall, the Commission concluded that “the testimony of Dr. Abrar was lacking in giving an accurate picture of Mr. Eldredge’s vision capabilities or lack of capabilities” (Id., Conclusion ¶ 1.) The Commission concluded that the City had failed to meet its burden of showing that Eldredge was incompetent to work as a firefighter and overturned the City’s decision to terminate him. (Id. ¶ 4; and Order.) Defendants did not appeal the Commission’s decision. (Rule 30(b)(6) Dep. at 226, Pl.’s Ex. 97.)

E. Management Audit

At some point in 2007, an outside firm conducted a management audit of the Fire Department after which Defendants formed an internal committee to propose action based on the auditor’s recommendations. (See Haltiner Dep. at 19-20, Pl.’s Ex. 99; Internal Audit Committee Notes, Pl.’s Ex. 16.) The auditor proposed that Defendants add an additional Training Assistant and AV/Technician position to the training division (Recommendation No. 103, Internal Audit Committee Notes at 2, Pl.’s Ex. 16), and replace the uniformed AV Technician with a civilian, through attrition (Recommendation No. 113, id.) Retired St. Paul Fire Department Assistant Chief Michael Hogan testified that he believed the uniformed AV Technician referred to Mr. Eldredge and that Eldredge would have been qualified to be a training assistant. (Hogan Dep. at 114-15, Pl.’s Ex. 96.) The auditor’s recommendations were not implemented. (Id. at 116.)

F. Suspension Due to Lack of Driver’s License

During the course of the Veterans’ Preference Hearing, Defendants learned that Eldredge’s Minnesota driver’s license had expired in July 2004. (See MN Driver License Record, Defs.’ Ex. 18.) The possession of a driver’s license is a requirement for the position of firefighter and Defendants further require employees to notify their supervisors of the loss of any driving privileges. (See City of St. Paul Policy, PL’s Ex. 23.) Eldredge admitted to driving a non-City owned vehicle without a driver’s license while employed by the St. Paul Fire Department for a certain period of time. (Letter of 5/24/07 from R. Morrison to B. Eldredge, Defs.’ Ex. 19.) On May 24, 2007, Defendants gave Eldredge a 15-day suspension for driving without a license. (Id.) That same day, Defendants also communicated to Plaintiff that, having learned that his Minnesota license was “canceled” on May 21, 2007, he was placed on leave without pay for up to 120 days or until he could legally drive. (Second Letter of 5/24/07 from R. Morrison to B. Eldredge, Defs.’ Ex. 20.)

Eldredge remained on leave without pay and in December 2007, filed a petition for relief under the Veterans’ Preference Act, contending that the City had refused his verbal and written requests for a hearing regarding his suspension and leave, noting that a suspension of more than 30 days constitutes a termination under the VPA. (Petition, Defs.’ Ex. 23.) Plaintiff contacted the Commissioner of Veteran’s Affairs, who scheduled a hearing for February 2008. (ComplA 30.) In approximately July 2007, Plaintiff ultimately obtained a Wisconsin driver’s license, because at that time and through the present, he maintained a permanent residence in Wisconsin. (See Rule 30(b)(6) Dep. at 39; Charge of Discrimination of 2/14/08, Pl.’s Ex. 35.)

G. September 24, 2007 Termination Notice:

On September 24, 2007, after the expiration of Plaintiffs 120-day unpaid leave period, Defendants issued yet another termination notice. (Letter of 9/24/07 from R. Morrison to W. Eldredge, Pl.’s Ex. 28.) Defendants stated that Plaintiffs job classification required a “license that is valid for driving in the State of Minnesota,” and because Eldredge did not possess such a license, the City intended to take action in terminating him. (Id.) Defendants apparently believed that a Wisconsin driver’s license did not meet their requirements, as Terry Haltiner described the grounds for this notice of intent to terminate as “our intent to terminate your employment because of your failure to present a driver’s license that is valid in the State of Minnesota.” (Email string of 10/3/07, Pl.’s Ex. 29.) In Eldredge’s communications with Defendants to resolve the September 2007 termination notice, he expressed his view that withholding his pay was illegal and reiterated his position that “with minor accommodations, I can perform the firefighter job.” (Id.)

H. Second Charge of Disability Discrimination Filed with MDHR

In February 2008, Plaintiff filed a second charge of discrimination with the MDHR, alleging disability discrimination based on Defendants’ actions related to his driver’s license. (Charge of Discrimination of 2/14/08, PL’s Ex. 35.) In the charge, Eldredge expressed his belief that disability and reprisal were factors in Defendants’ actions. (Id. at 2.) He noted that after he filed his initial charge of discrimination against Defendants, he was removed from his AV/Technician position and placed on unpaid leave. (Id.) The MDHR completed an investigation of Eldredge’s charge, finding that probable cause existed to believe that Defendants committed an “unfair discriminatory practice.” (Letter of 4/3/09 from V. Korbel to W. Eldredge, PL’s Ex. 36.) The MDHR referred the matter to the Minnesota Attorney General’s Office in order to schedule a conciliation conference. (Id.)

While the VPA hearing on Plaintiffs suspension was pending, Defendants contacted him about returning to work. Acknowledging the St. Paul Civil Service Commission’s ruling in Eldredge’s favor on the earlier termination attempt, Defendants distinguished the pending VPA hearing on Eldredge’s driver’s license-related suspension as a “separate and distinct issue.” (Letter of 12/21/07 from T. Haltiner to B. Eldredge.) However, before Eldredge could return to work, Defendants required that he submit to a fitness-for-duty exam. (Id.) Plaintiff refused to sign medical release forms, and after Plaintiff contacted the fitness-for-duty examining doctor prior to the examination, the doctor canceled the appointment and it did not occur. (See Letter of 2/1/08 from T. Butler to W. Eldredge, Pl.’s Ex. 38.)

On January 6, 2008, Eldredge requested a VPA Hearing on the September 24, 2007 termination notice, and reiterated a request to be returned to the payroll, with back pay and benefits from the start of his involuntary unpaid leave that began on May 24, 2007. (Letter of 1/6/08 from B. Eldredge to S. Wegwerth, PL’s Ex. 30.) In addition, Eldredge expressed his belief that the City’s refusal to return him to his light duty in the Training Division until he passed a fitness-for-duty examination was retaliatory. (Id. at 1.) Finally, Eldredge addressed his request for accommodation:

The City consistently refused to consider accommodating my disability. I’ve shown that I can do the job of firefighter at Station 23 and at the Training Division. The City has consistently refused to give me a practical test of the actual tasks (essential functions) of the firefighter job, such as has been given to others on the Fire Department. Under the ADA, mere identification of a medical condition is insufficient to terminate an employee.

With reasonable accommodation I can continue to work as a firefighter. Please consider my requests in accordance with the Americans with Disabilities Act, the Veterans’ Preference Act, and other laws. Also, pending resolution of the issues involved in the City’s efforts to terminate me, please reinstate me on paid status, including back pay and benefits from May 25th 2007.

(Id. at 2.)

On January 14, 2008, Defendants’ Human Resources Consultant Haltiner contacted both the St. Paul Police Department and the Minnesota Department of Motor Vehicles (“DMV”) with questions relating to Eldredge’s driving status. Haltiner essentially asked the same question of both agencies:

I have an employee, with the St. Paul Fire Dept., who is required to have a [driver’s license]. As of May 21, his [driver’s license] was listed as canceled. I believe due to failure to pass the eye exam. He has since gotten a Wise [driver’s license] that restricts his driving to daylight hours. I know there is a statute that states if you are canceled or revoked in Minn and get a [driver’s license] in another state, you still cannot legally drive in Minn. I need to know if this individual can legally drive in Minn. Who can tell me?

(Email string of 1/14/08 between T. Haltiner and DMV, PL’s Ex. 32; Email string of 1/14/08 between T. Haltiner and G. Pye, PL’s Ex. 31.) An employee from the Department of Motor Vehicles responded, stating, “Our records show that we received the requested information and so [Eldredge’s] driving privileges have been reinstated in Minnesota.” (Email string of 1/14/08 between T. Haltiner and DMV, PL’s Ex. 32.) A St. Paul Police Officer responded to Haltiner’s inquiry, informing him that Eldredge’s driving privileges were reinstated on January 8, 2008, stating, “I would say that since his Minn. driving privileges have been reinstated here in Minn, and he has presented a valid Wise, [driver’s license] to you, he would meet [the] requirements of his job.” (Email string of 1/14/08 between T. Haltiner and G. Pye, PL’s Ex. 31.)

On January 16, 2008, Defendants retroactively returned Eldredge to work, effective January 7, 2008, and assigned him to light duty work at the Department’s headquarters. (Letter of 1/16/08 from T. Haltiner to W. Eldredge, Defs.’ Ex. 25.) In light of the resolution of Plaintiffs driver’s license issues and related pay concerns, Plaintiffs MHRA charge was considered settled and the file was closed. (Letter of 4/28/08 from B. Johnson to C. Dyrud, Defs.’ Ex. 29.)

I. Reprimand for Refusal to Sign Medical Releases

On February 1, 2008, Chief Butler reprimanded Plaintiff in writing, stating that his refusal to sign medical releases was unacceptable, and that his phone call to the doctor with whom Defendants had scheduled his fítness-for-duty examination was likewise unacceptable. (Letter of 2/1/08 from T. Butler to W. Eldredge, Pl.’s Ex. 38.) Chief Butler ordered Plaintiff to sign the applicable medical release forms. (Id.) Eldredge responded by letter the following day, stating that he spoke by telephone with Dr. Flood, Defendants’ identified fitness-for-duty examining physician, and offered to sign medical releases directly to him, but Dr. Flood declined. (Letter of 2/1/08 from W. Eldredge to T. Haltiner, PL’s Ex. 40.) Eldredge wrote that Defendants supplied the releases at the end of the day on January 24 and requested that they be returned the following day. He further explained, “You stated that they were for Dr. Flood, but they were actually addressed to a 3rd party, a medical clearing house, and further stated that my information could be disclosed to others and would no longer be afforded privacy protection.” (Id.)

In his deposition, Eldredge explained that he refused to sign Defendants’ 2008 medical release forms for inherent deficiencies, such as being overly broad in scope, not specifying the recipient, and allowing the release of information to third parties. (Eldredge Dep. at 146, Defs.’ Ex. 2.) “I never made any decision not to release medical information. I simply made a decision not to sign forms which violated my rights or were deficient in some other way.” (Id.) Eldredge was particularly sensitive to the unauthorized release of his medical records and recounted at his deposition how, at his VPA Hearing, Dr. Abrar had full access to his records and read them into the record at the hearing, despite Eldredge’s claim that he had never authorized the release of the records to her. (Id. at 155.)

On March 12, 2008, Chief Butler wrote to Plaintiff, acknowledging his pending VPA hearing, and conceding that Eldredge’s driving privileges had been reinstated on January 8, 2008. Butler therefore questioned whether ‘it made sense’ for Eldredge to pursue the scheduled VPA hearing. (Letter of 3/12/08 from T. Butler to W. Eldredge, PL’s Ex. 33.) Butler nevertheless stated that Defendants required additional documentation concerning Plaintiffs driving privileges and unless Plaintiff provided that information, Butler could not rescind the September 24, 2007 notice of intent to terminate. (Id.) Moreover, Butler informed Plaintiff that his failure to provide the documentation by April 1, 2008 would constitute insubordination and grounds for discipline. (Id.)

Eldredge responded by letter on March 28, 2008, informing Chief Butler that he had contacted DMV authorities who informed him that the only information they received in January 2008 was the submission of Eldredge’s change of address in Wisconsin. (Letter of 3/28/08 from W. Eldredge to T. Butler, Pl.’s Ex. 34.) Eldredge also indicated that while Minnesota DMV authorities were unwilling to provide any written documentation, they would be willing to speak with Chief Butler to verify Minnesota’s recognition of his out-of-state license and reinstatement of Minnesota driving privileges. (Id.) Eldredge demanded that Defendants rescind the termination notice without further delay, discontinue their repeated efforts at termination, and instead accommodate him as a qualified disabled person. (Id.)

On April 14, 2008, Defendants scheduled a fitness-for-duty examination for Plaintiff with Dr. Joseph Terry, a University of Minnesota ophthalmologist whom Plaintiff had seen several years earlier, and a second medical examination with Dr. Charles Hipp. (Letter of 4/14/08 from A. Nalezny to W. Eldredge, PL’s Ex. 41.) The following day, Chief Butler sent a letter to Plaintiff in which he acknowledged the two pending exams and ordered Plaintiff “to keep these appointments and cooperate with the doctors. You are not to contact these doctors before the exams.” (Letter of 4/15/08 from T. Butler to W. Eldredge, PL’s Ex. 42.) Chief Butler also attached five medical release forms and ordered Eldredge to sign them, stating, “failure to follow these orders will be considered to be insubordination and grounds for discipline.” (Id.)

Eldredge responded to Chief Butler’s letter on April 17, 2008, expressing his willingness to assist Defendants and medical personnel in devising a practical fitness-for-duty examination. (Letter of 4/17/08 from W. Eldredge to T. Butler, PL’s Ex. 43.) Also, Eldredge expressed his view that the order prohibiting him from communicating with the two doctors assigned to examine him was not legal. As to Chief Butler’s directive that he sign the medical releases, Eldredge stated that the release of medical information was voluntary pursuant to City policy and he viewed any discipline for his failure to sign the forms as a form of retaliation. Eldredge emphasized his desire to work with Defendants to obtain reasonable accommodation: “The City has attempted to terminate me three times, but has consistently refused to offer skills testing. The City has also refused to accommodate my disability under the ADA, in accordance with the NFPA guidelines for incumbent firefighters.” (Id.) He identified reasonable accommodation to include permission to use a magnifying glass for any incidental reading as a firefighter and not requiring him to drive emergency vehicles, or allowing him to work in the training position that he had previously held. (Id.) “To date, the City’s only response to my repeated requests for accommodation was ex-Fire Chief Holton’s absolute refusal to consider it.” (Id.)

On April 28, 2008, Chief Butler transferred Eldredge from the Training Division to department headquarters, where he was to work on strategic plan implementation, including computer data mining. (Email string between T. Butler and K. Morehead, PL’s Ex. 45.) Keith More-head, Plaintiffs supervisor in Training, communicated his unhappiness about this transfer to the Chief, stating, “This is a very disappointing development. Bill was a crucial factor in developing our recent highly successful ‘Post Incident Review1 Powerpoint format. He is physically healthy and strong, allowing him to assist us daily with recruit academy practicáis.” (Id.) In his deposition, Chief Morehead testified that assigning Mr. Eldredge to perform data mining constituted a “total disregard of Bill’s injury or problem,” explaining that given Eldredge’s problems with eye strain, it made no sense to have Eldredge read reports eight hours a day. (Morehead Dep. at 87-88., PL’s Ex. 100.) Morehead testified that although he did not know Defendants’ precise motivations for transferring Eldredge, “... the way it is perceived or observed is that they were trying to force Bill out or they were trying to make Bill — tip Bill over, frustrate Bill to the point that he couldn’t take it anymore, and that was wrong. We shouldn’t treat our employees that way.” (Id. at 88.)

On April 28, 2008, Angela Nalezny, St. Paul’s Director of Human Resources, responded to Eldredge’s April 17, 2008 letter regarding the medical releases and fitness-for-duty exam. (Letter of 4/28/08 from A. Nalezny to W. Eldredge, PL’s Ex. 47.) Ms. Nalezny stated that Eldredge’s requests for accommodation were under consideration. (Id. at 1.) She included medical releases directing the release of medical records to Defendants’ fitness-for-duty evaluators/medical personnel and stated that until the completion of the evaluations, Defendants could not consider any of Plaintiff’s requests for accommodation. (Id. at 2.) Chief Butler followed up with a letter on May 6, 2008, ordering Eldredge to deliver all of the signed release forms to Terry Haltiner by May 9, 2008, and to keep the two medical appointments. (Letter of 5/6/08 from W. Eldredge to T. Butler, PL’s Ex. 48.)

Eldredge responded by letter on May 7, 2008, acknowledging Ms. Nalezny’s representation about the City considering Plaintiffs requests for accommodation: “This is the first time in the four years since the City first attempted to terminate me that the City has not categorically denied accommodation.” (Letter of 5/7/08 from W. Eldredge to A. Nalezny, PL’s Ex. 49.) Eldredge further stated that he did not intend to sign the medical releases, as doing so was apparently voluntary under City policy, and because the City possessed sufficient medical information about his condition to determine the necessary accommodation. (Id. at 2.)

Ms. Nalezny responded, stating that without medical releases, which would include the release of information from Dr. O’Malley at the Phillips Eye Institute, it would be impossible for the City to take such opinions into consideration. (Letter of 6/6/08 from A. Nalezny to W. Eldredge, PL’s Ex. 50.) Citing the ADA and the MHRA, Ms. Nalezny indicated that the City considered his refusal to provide the requested medical releases an obstruction of the City’s effort to make a reasonable accommodation, if available. (Id.) Ms. Nalezny concluded by stating, “Please be on notice this [your refusal to sign the medical releases] will likely be a decision to terminate your employment.” (Id.)

On June 24, 2008, Plaintiff attended a fitness-for-duty evaluation that Defendants had scheduled with Dr. Terry, and on July 17, 2008, Plaintiff attended another fitness-for-duty examination with occupational health physician Charles Hipp. (See Medical Records, PL’s Exs. 51-55.) Dr. Terry reviewed the NFPA 1582 standard and found that Plaintiff would not be able to operate a motor vehicle without a restricted license and that his central macular atrophy would limit his visual recovery in responding rapidly to changing visual stimuli. (Medical Record, PL’s Ex. 51.)

Dr. Hipp concluded that Plaintiff “clearly does not meet the NFPA 1582 far visual acuity standard. The condition is permanent and will not improve. I do not recommend further testing.” (Medical Records, PL’s Ex. 52.) Dr. Hipp opined that Plaintiff would be an excellent candidate on a fire team to work as a video recorder, and noted, “I also believe that he can perform all of the functions of his training position that he did successfully for several years before his recent time off of work. I don’t believe that his visual impairment would be an issue in working as a trainer.” (Id. at 2.)

J. February 9, 2009 Notice of Intent to Terminate:

On February 9, 2009, Defendants issued a third notice of intent to terminate, based on the evaluations of Dr. Hipp in 2008, Dr. Zheng in 2006, and Dr. Abrar in 2004. (Letter of 2/9/09 from T. Butler to W. Eldredge, Pl.’s Ex. 56.) Defendants concluded that “[o]ver the past four years it has become evident that your condition has not improved. Based on your condition, these most recent medical examinations and the highly safety-sensitive nature of your job to the public and your coworkers, we clearly can no longer assign you to firefighting duties.” (Id.)

K. St. Paul Civil Service Commission 2009 Ruling

After Plaintiff requested a VPA Hearing regarding Defendants’ February 2009 intent to terminate, the St. Paul Civil Service Commission issued an order of summary disposition stating that it had previously decided the matter and that Defendants were prohibited from attempting to terminate Plaintiff based on his disability. (2009 Civil Service Comm’n Order and Mem., PL’s Ex. 59.) The Commission specifically found that the more recent medical records submitted by the City were not materially different from those submitted in connection with the 2007 hearing and that Defendants were not entitled to a “do-over.” (Id. at NKA000131.) Rather, the Commission found that “[i]t would be inequitable and inefficient to allow the City to engage in ‘expert shopping’, jumping from expert to expert until it finds one that either agrees with its position or is deemed to be credible by the Commission.” (Id.) The Commission acknowledged Defendants’ argument that because Eldredge refused to provide medical releases, they were not given a full and fair opportunity to be heard before the Commission in 2007. (Id. at NKA000132.) However, the Commission found that “while the City makes this argument, it tellingly has not alleged that Mr. Eldredge was obligated to provide any such medical releases or other background information — nor have they cited any policy, procedure or legal authority requiring him to do so.” (Id. at NKA000132-33) (emphasis in original).

Defendants appealed the Commission’s ruling to the Ramsey County District Court, which found their appeal untimely and ordered “immediate reinstatement of Eldredge to his employment with the St. Paul Fire Department.” (Order in City of St. Paul v. Eldredge, File No. 62-CV-0910390, 2010 WL 4971782 (Minn.Dist.Ct. Jan. 13, 2010), PL’s Ex. 61.) After Defendants appealed that ruling to the Minnesota Court of Appeals, the appellate court reversed and remanded, finding that the deadline for filing the appeal was governed by a longer period for civil service review, rather than by a statute establishing a deadline for appeals under the VPA. Saint Paul v. Eldredge, 788 N.W.2d 522, 529 (Minn.Ct.App.2010). The Minnesota Supreme Court recently affirmed the ruling of the Minnesota Court of Appeals, remanding the matter to the Ramsey County District Court. Saint Paul v. Eldredge, 800 N.W.2d 643, 651 (Minn.2011).

L.Defendants Assign Eldredge to Work From Home

Defendants ultimately removed Plaintiff from the workplace altogether for a 19-month period, assigning him to work from home. (Rule 30(b)(6) Dep. at 178-79, 227, PL’s Ex. 97.) During this time, Defendants assigned Human Resources Consultant Haltiner to supervise Plaintiff while he was not permitted to work, giving Haltiner authority to control ‘where Plaintiff can work, when he can work and how often he must check in.’ (Butler Dep. at 102-04, Pl.’s Ex. 91.) Haltiner required Plaintiff to report to his office once a week to advise him of whether Defendants had any work “available within your restrictions.” (Letter of 5/13/10 from T. Haltiner to W. Eldredge, PL’s Ex. 63.) Further, Haltiner reminded Eldredge, “You are not to be at Fire Department worksites unless assigned by me.” (Id.) In addition, Haltiner informed Eldredge that his hours of work (at home) would be from 8:00 to 4:30, Monday through Friday, and that if he needed to attend depositions or any activities related to his litigation against the City, he would be required to request vacation time. (Id.) In response, Eldredge told Haltiner that “Your requiring me to report for duty weekly only to be told ‘we have no work meeting your restrictions’ and ‘we have no long-term light duty’ is another example of continued discrimination, as well as being demeaning and demoralizing. As I have suggested, if you have no work, a simple phone call or email would suffice.” (Letter of 6/20/10 from B. Eldredge to T. Haltiner, PL’s Ex. 66.) Eldredge also reiterated his previous requests for accommodation. (Id.)

M. NFPA Standards and Practical Skills Testing

In 2008, Chief Morehead, Plaintiffs Training Division supervisor, independently researched NFPA standards relating to vision and contacted Carl Peterson, an NFPA staff liaison, with interpretation questions. (Morehead Dep. at 48, PL’s Ex. 100.) Morehead asked Peterson a series of questions in an email exchange, including whether “members,” [veteran firefighters] must meet the same NFPA standards that “candidates” are expected to meet, and what the appropriate process would be by which to evaluate whether a firefighter with visual deficits could perform essential job tasks. (Email string between K. Morehead and C. Peterson at 3, PL’s Ex. 73.) Based on his communications with NFPA’s Peterson, Morehead concluded that Defendants were applying the wrong NFPA standards to Eldredge. (Morehead Dep. at 52-53, PL’s Ex. 100) (noting that “candidates” are evaluated against the requirements of Chapter 6, while a “member” who develops an illness or injury is evaluated against a specific section of Chapter 9 concerning that medical problem). Citing NFPA Sections 4.2 and 9.3, Peterson informed Morehead that for “members” requiring an evaluation due to illness or injury, a fire department physician is responsible for determining if a medical condition affects the firefighter’s ability to safely respond to emergencies, “based on the ability to perform essential job tasks.” (Email string between K. Morehead and C. Peterson at 3, PL’s Ex. 73.) “The standard requires the fire department to determine possible accommodations for members restricted from certain job tasks.” (Id.) Morehead forwarded this information to his superiors, Chiefs Hogan and Butler, and to Haltiner. (Id. at 1.) He appealed to Butler to give further consideration to Eldredge’s situation and to give him a practical skills test — a request he had made to Butler’s predecessors and which had been denied:

Bill has already been terminated once and is working now only because he won his hearing. I am not in favor of mindlessly placing Bill back on the street as a firefighter. I have told Bill that I would be the first to tell him he cannot continue if he truly could not do the job. His treatment has been, and continues to be not only inconsistent with NFPA guidelines, but I believe it too is wrong.

(Email of 2/18/08 from K. Morehead to T. Butler at 1-2, PL’s Ex. 81.) Butler did not respond to Morehead’s email. (Morehead Dep. at 65, PL’s Ex. 100.) Morehead then developed a practical skills test for Plaintiff based on his understanding of Defendants’ requirements and the NFPA’s standards. (Id. at 65-73.) After presenting the practical skills test to Chief Butler, he approved it and was in favor of Eldredge undergoing the test, although, according to Morehead, Butler thought “that City Hall was hesitant to let Bill take the evaluation because they feared he would pass it.” (Id. at 78-79.) Morehead’s efforts to continue to press for this test did not produce any results. (Id. at 83-84). Morehead was threatened with demotion by Chief Butler, which Morehead believes was retaliation for his support of Eldredge. (Morehead Dep. at 155-57, Pl.’s Ex. 101.) He eventually took a voluntary demotion. (Id. at 157-58.)

Terry Haltiner testified in the Rule 30(b)(6) deposition that Defendants denied Plaintiffs request for individualized practical skills testing because Dr. Hipp said it would not be needed. (Rule 30(b)(6) Dep. at 52-53.) Although Dr. Hipp recommended no further testing in his written evaluation, he testified that he did not intend for that to mean that Defendants could not perform any practical skills testing. (Hipp Dep. at 39-40, 65, Pl.’s Ex. 104.)

Plaintiff eventually scheduled his own practical skills testing, performed on May 26-27, 2010 at Lansing Community College under the evaluation of Jeffrey Huber, Professor of Fire Science. (Letter & Expert Report of J. Huber, PL’s Ex. 87.) Huber compiled video footage of Eldredge’s performance and also produced a report finding that Plaintiff successfully performed the essential functions of skills outlined in the NFPA standards and on Defendants’ list of essential firefighter functions. (Id.) After completing this practical assessment, Eldredge forwarded the report and video footage to occupational health physician expert Dr. V.M. Van Nostrand, who performed an independent medical evaluation. (Van Nostrand Report, PL’s Ex. 88.) Dr. Van Nostrand reviewed the materials from Professor Huber, Plaintiffs medical history, the NFPA essential functions and vision standards, and Defendants’ essential functions of the firefighter position. He also conducted a vision and physical examination and concluded that Plaintiff is able to perform the essential functions of the firefighter position with reasonable accommodations. (Id. at 17.) Dr. Van Nostrand recommended that Plaintiff not drive an emergency vehicle and he endorsed the use of a magnifying glass for any reading. (Id.)

Defendants’ Rule 30(b)(6) deponent Haltiner agreed that prior to 2009, Defendants had never conducted an interactive process to evaluate whether reasonable accommodations could be provided for plaintiff. (Rule 30(b)(6) Dep. at 130.) Haltiner also stated that he was unaware of whether any doctors had reviewed Eldredge’s file or examined him to determine whether reasonable accommodations were possible. (Id. at 131.)

II. PROCEDURAL HISTORY

Plaintiff filed this suit on August 3, 2009, alleging violations of the ADA (disability discrimination, failure to accommodate, retaliation and coercion), the ADA Amendments Act (disability discrimination and failure to accommodate), and the Minnesota Human Rights Act (disability discrimination, failure to accommodate and reprisal). Defendants move for summary judgment, arguing that Plaintiffs claims fail as a matter of law because Eldredge cannot perform the essential functions of a firefighter, his requested accommodation creates an undue hardship, permanent light-duty work does not exist, and that Plaintiff cannot show that he has suffered any adverse employment impact. In addition, Defendants argue that the use of certain NFPA visual acuity standards for the firefighter position is a business necessity and that allowing Eldredge to fight fires in contravention of those standards would pose a threat to his personal safety. Finally, Defendants contend that Plaintiff cannot show that the City retaliated against him.

Plaintiff also moves for summary judgment, arguing that he has demonstrated, as a matter of law, that he is disabled and is able to perform the essential functions of a firefighter with or without reasonable accommodation. In addition, Plaintiff contends that he has demonstrated adverse employment action because of his disability and that Defendants are unable to show that they cannot reasonably accommodate him. As to his retaliation claims, Plaintiff contends that he has demonstrated that in response to his protected conduct, Defendants retaliated against him by changing his time records and taking his vacation benefits or pay when he was involved in litigation.

In addition, Plaintiff seeks to exclude Defendants’ medical experts’ proposed testimony and reports, arguing that they fail to meet the requirements of Fed.R.Evid. 702 and are neither reliable nor relevant. Plaintiff argues that the proposed testimony is not relevant because its purpose is to prove arguments barred by the doctrine of collateral estoppel. In addition, Eldredge argues that the proposed expert testimony is unreliable because the tests were not administered according to accepted methodology, the results do not reflect the actual data collected from completed testing, and the experts’ conclusions are based on speculation without a factual foundation.

III. DISCUSSION

A. Summary Judgment Motions

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as' a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir.1996). A dispute over a fact is “material” only if its resolution might affect the outcome of the lawsuit under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. All justifiable inferences are to be drawn in the non-movant’s favor and the evidence of the non-movant is to be believed. Id. at 255, 106 S.Ct. 2505.

1. Disability Discrimination Claims

The ADA and the MHRA prohibit an employer from taking an adverse action against an employee because of the employee’s disability. 42 U.S.C. § 12112(a); Minn.Stat. § 363A.08, subd. 2. Plaintiffs claims under both the ADA and MHA are analyzed under the McDonnell Douglas burden shifting analysis. Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 439 n. 4 (8th Cir.2007) (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). To establish a prima facie case of disability discrimination under this framework, Eldredge must show that: (1) he had a disability within the meaning of the ADA and the MHRA; (2) he was qualified to perform the essential functions of his job, with or without reasonable accommodation, and (3) he suffered an adverse employment action because of his disability. Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1079 (8th Cir.2009).

a. A “Disability” Within the Meaning of the ADA and MHRA

The first element of Plaintiffs disability claim is not in serious dispute. The ADA defines disability in the following three ways: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). The MHRA is “less stringent,” requiring that an impairment only “materially limit a major life activity.” Liljedahl v. Ryder Student Transp. Servs., Inc., 341 F.3d 836, 841 n. 3 (8th Cir.2003). “[A] disability must be permanent or long term, rather than temporary or transitory, to qualify a person for protection against discrimination.” Dixon v. Mount Olivet Careview Home, 09-1099 (MJD/AJB), 2010 WL 3733936, at *7 (D.Minn. Sept. 17, 2010). As to the determination of whether an impairment substantially limits a major life activity, such a determination

[Sjhall be made without regard to the ameliorative effects of mitigating measures such as—

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses) ...;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

42 U.S.C. § 12102(4)(E)(i)(I)-(IV).

Here, the record is unequivocal that Eldredge has been diagnosed with Stargardt’s Macular Dystrophy, a progressive disease, causing a small blind spot in the center of his vision, which negatively impacts his central acuity vision. Stargardt’s Disease is a permanent, long-term condition. Recurring evidence in the record shows vision scores of 20/200 in Eldredge’s left eye, with Defendants’ expert Dr. Allen scoring 20/200 in both eyes in July 2010. (See, e.g., Allen Report of 7/2/10 at 2, Pl.’s Ex. E to Daubert Mem. [Doc. No. 161-1].) While Eldredge’s vision has been deemed stable for several years, the record shows that it will not reverse itself or improve. Mitigating measures that Eldredge uses or proposes to use include a magnifying glass and/or a pocket telescope. As noted above, the use of such equipment is not part of the determination of whether a condition substantially limits a major life activity, nor is there any evidence to suggest here that the temporary use of such devices addresses Eldredge’s overall visual impairment in the way in which corrective lenses might resolve nearsightedness. See Sicard v. City of Sioux City, No. 98-3799, 2000 WL 688223 (8th Cir.2000) (Firefighter applicant, whose nearsightedness could be corrected to a 20/20 visual acuity level with corrective lenses was not “disabled” within the meaning of the ADA).

The MDHR, examining the same facts that form some of the bases of Eldredge’s claims here, has twice found him to be disabled within the meaning of the MHRA. (See 2008 MDHR Mem. at 1, PL’s Ex. 19; 2009 MDHR Mem. at 1, PL’s Ex. 36.) While Defendants do not necessarily concede that Eldredge is disabled, in their motion for summary judgment they focus their argument on the other two elements of the McDonnell Douglas test and do not seriously contest the question of disability. (See Defs.’ Summ. J. Mem. at 15.) Based on the record, and viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff has established that he is “disabled” within the meaning of the ADA and MHRA.

b. Qualified to Perform Essential Functions of the Job

The determination of whether an employee is qualified to perform the essential functions of a job involves a two step inquiry. First the employee must show that she meets the necessary prerequisites for the job, and then she must demonstrate that she can perform the essential functions, with or without reasonable accommodation. If the employee establishes that she cannot perform the essential functions of the job without accommodation, she must also make a facial showing that reasonable accommodation is possible and that the accommodation will allow her to perform the essential functions of the job.

Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir.2003) (citations omitted). To first determine if Eldredge is “qualified” to perform the essential functions of the job, he must demonstrate that he meets the “requisite skill, experience, education and other job-related requirement of the employment position [that he] holds or desires.” 29 C.F.R. § 1630.2(m). Defendants concede that Eldredge meets the basic requirements of the firefighter position, not simply because they employed him in that capacity for several years, but as their Rule 30(b)(6) witness Haltiner conceded, “The qualifications listed on the application, the testing, the education he meets clearly.” (Rule 30(b)(6) Dep. Tr. at 31, Pl.’s Ex. 97.) The Court finds that Eldredge meets the necessary prerequisites to qualify for the firefighter position.

At the next step of the analysis, Eldredge argues that he is qualified to perform the essential functions of the job with or without accommodation. Under the ADA, “[a]n individual is qualified if he satisfies the requisite skill, experience, education, and other job-related requirements and ‘can perform the essential job functions, with or without reasonable accommodation.’ ” Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir.2007) (quoting Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000)). An employer bears the burden of showing that a particular function is essential. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir.1995). “Essential functions of the job are fundamental job duties, and the employer’s judgment in this regard is considered highly probative.” Duello v. Buchanan Cnty. Bd. of Supervisors, 628 F.3d 968, 972 (8th Cir.2010) (citation and internal quotation marks omitted). A job function may be considered essential for any of several reasons, including that “the reason the position exists is to perform that function;” there are a limited number of employees available among whom the performance of that job function can be distributed; or the function may be “highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” 29 C.F.R. § 1630.2(n)(2).

In this case, from a list of seventeen numbered “Duties and Essential Functions,” the following essential functions are described as “functions that the individual holding the position must be able to perform unaided or with the assistance of a reasonable accommodation: ”

1. Responds to fires and emergency calls with a company; connects and handles hose lines and nozzles; places or hoists ladders; turns water on or off; uses axes, bars or hooks as appropriate, and utilizes chemical extinguishers or hoses to extinguish a fire.

2. Ventilates burning buildings by-opening or breaking doors or windows or cutting holes through walls, floors and/or roofs; and forces entry by breaking glass, springing or forcing doors, windows, or gates, cutting locks, bars, or wire grating, or breaking walls using appropriate safety gear and equipment.

3. Operates in difficult work environments including but not limited to: conditions of high heat, low visibility, and confined space; on elevated ladders or apparatus; at accident scenes; and/or under adverse weather conditions.

4. Acts as a member of a Fire Department medical unit crew and attends sick and injured persons as assigned.

5. Carries or manually transports patients on a stretcher or to and from a stretcher.

[items 6-7, 10, 12 and 14 are not considered “essential functions”]

8. Participates in drills, demonstrations, and courses related to equipment use, fire fighting techniques, and rescue procedures.

9. Participates in the maintenance and care of quarters, equipment, tools, apparatus, and grounds.

11. May drive a Fire Department ambulance as assigned.

13. Acts in emergencies as Fire Equipment Operator or Fire Captain of a company as assigned.

15. Assists in giving tours and demonstrations to the public.

16. Assists in crowd control in emergency situations.

17. Must be able to adhere to work schedule and hours assigned.

(Duties and Essential Functions, Pl.’s Ex. 70) (emphasis added).

An employer’s position description and judgment in determining what is an “essential function” is a considered factor, and here, Defendants identify being able to drive a “Fire Department ambulance” as an essential function. (Id.) On the other hand, Plaintiff argues that driving emergency vehicles is not an essential function of the firefighter position and although Defendants require firefighters to possess a valid driver’s license, they do not actually require all firefighters to drive departmenta