BOSTON -- The state Appeals Court has overturned a $450,000 award to a retired Lowell fire captain who won a discrimination lawsuit when the city refused to let him return to work after suffering an asthma attack in 1996.
In 2010, a Middlesex Superior Court jury awarded Capt. James McLaughlin, then 60, of Pelham, N.H., $350,000 in damages, plus interest and costs, after deciding McLaughlin was subjected to handicapped discrimination and that the city interfered with McLaughlin's protected rights.
Judge Joseph M. Walker III, the trial judge, rejected the city's request to overturn the verdict. The judge, however, did amend the judgment ordering McLaughlin to get $200,000 plus interest, along with $15,000 in costs and $235,000 in attorney's fees. The city appealed.
In a decision issued Thursday, Appeals Court Judge Francis Fecteau overturned the jury's verdict.
Fecteau wrote that while the Appeals Court "respects'' the underlying public policies that protect those with handicaps, the law allows employers to determine whether employees, with reasonable accommodation, can perform their jobs.
"While we do not lightly vacate the jury's verdict,'' Fecteau wrote the trial judge should have rejected the verdict.
In response to the decision, Lowell City Solicitor Christine O'Connor said on Thursday, "The arguments raised by the city on appeal have been the same arguments made throughout the litigation. The city is obviously pleased with the decision of the appellate court.''
In a statement in 2010, O'Connor added, "The standpoint of the city is that public safety is the priority for the individual firefighter and the general public."
McLaughlin's attorney, Betsy L. Ehrenberg, of the law firm of Pyle Rome Ehrenberg, said, "We will appeal to the SJC (Supreme Judicial Court) for further appellate review.''
The outcome of his returning to work would have significantly increased McLaughlin's retirement pay to the current salary of a captain, according to officials. But in an interview with The Sun after the 2010 verdict, McLaughlin said the increased salary was "not a consideration."
Assistant City Solicitor Kim McMahon said in 2010 that McLaughlin would not have automatically been returned to the job at that point. He would have had to pass a "retraining" program, which included knowing the current policies and a physical-endurance exam.
As part of clarifying McLaughlin's job description, which includes fighting fires, there is a policy used by Lowell and other departments that a firefighter is not allowed to take off his or her oxygen mask at a fire scene, McMahon said after the verdict. This would include not taking off a mask to use an inhaler, she said.
Fecteau wrote that while the jury found McLaughlin capable of performing the essential functions of a captain, "we disagree and conclude that McLaughlin had no reasonable expectation of proving he could perform the captain's duties after the third medical panel examined him.''
The medical panel did not unanimously rule that McLaughlin was capable of performing his job, and due to that McLaughlin failed to obtain the required approval for reinstatement, Fecteau wrote.
McLaughlin had been working as a Lowell firefighter since 1974, ultimately attaining the rank of captain. On July 8, 1996, he suffered an asthma attack after responding to a small outdoor mulch fire without wearing protective gear. McLaughlin was granted accidental disability retirement effective February 1997.
Since retiring, McLaughlin has not suffered another asthma attack. Late in 2000, with the support of his pulmonologist, McLaughlin sought reinstatement to his former position.
A three-member medical panel was designed to see if McLaughlin could perform the essential functions of the job. Initially, the first medical panel cleared McLaughlin for work. The city was ordered to reinstate him on Jan. 25, 2002, but there were no captain vacancies.
Two years later the city asked for clarification about whether they based their decision on the captain's functions or that of fire chief. Two of the three medical members changed their mind.
McLaughlin filed a civil lawsuit May 24, 2004.
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