Edward R. Ford
v .
Plymouth Village Water and Sewer District

EPH 3811-89

DECISION OF THE COMMISSION


Edward Ford, complainant, filed a charge of discrimination based on a perceived physical disability, mild asthma with chronic cough, against Plymouth Village Water and Sewer District, respondent. Complainant alleged that he was discriminated against because his employment was terminated by the Water and Sewer District Commissioners who erroneously concluded that he had a physical disability which prevented him from performing his job.

The respondent denied discrimination and justified its decision to terminate on a letter from the District's physician (who was also the complainant's personal physician) which said, inter alia, "(Mr. Ford) may have difficulty also with exposure to extreme cold and would be to his advantage if the temperature is below 10 to 15 degrees Fahrenheit, that he be working in a warmer environment." Based on this information, the Commissioners concluded that Mr. Ford was "not medically qualified for continued employment".

A hearing was held on September 25, 1995. Testimony was taken from Mr. Ford, Eugene Roniker, Superintendent of Plymouth Village Water and Sewer District, and Carol Kenneson, Administrative Assistant for the District. Each party submitted exhibits in support of their positions.</<BR>

FINDINGS OF FACT


After review of the testimony and evidence submitted, the Commission finds the following facts:

1. The complainant was employed by respondent from September 6, 1988 through January 10, 1989, when he was terminated.

2. The complainant's initial rate of pay was $8.00 per hour. The superintendent's calendar for December 5, 1988 indicates that the superintendant was going to recommend a rate of $8.50 per hour for the complainant for 1989.

3. On December 29, 1988, Dr. Frederick S. Kelsey sent a letter to the Administrative Assistant in response to her request. Exhibit #9. The letter stated/ in pertinent part, "Mr. Ford has a history of chronic cough with mild asthma. There is no specific fume problem other than any noxious fumes which would cause respiratory symptoms in any other normal person. He may have difficulty also with exposure to extreme cold and would be to his advantage if the temperature is below 10 to 15 degrees Fahrenheit, that he be working in a warmer environment. Other than known caustic fumes or smoke, there is no other specific environmental situations that he would specifically have to avoid."

4. On January 17, 1989, the Chairman of the District wrote to Mr. Ford, terminating his employment. Exhibit #2. The letter stated, in pertinent part,: "(i)t has become apparent that you are not medically qualified for continued employment."

The commissioners have reviewed a letter from Frederick Kelsey, M.D. and have determined that it is not in the best interest of the Plymouth Village Water and Sewer District to continue your employment, given the fact that your doctor has indicated that there are limitations to the conditions under which you can work without aggravating your existing medical condition."

5. The commissioners did not speak directly with Dr. Kelsey. Nor did they ask Dr. Kelsey whether or not Mr. Ford was medically qualified to continue his employment with the Plymouth Village Water and Sewer District. On October 28, 1993, Dr. Kelsey wrote to Human Rights Commission Investigator Geraldine K. Turner in response to the investigator's request for information regarding Mr. Ford's medical condition. Dr. Kelsey states that his letter was "in no way ... meant to preclude him from working in cold environments. His asthma was a treatable condition. Mr. Ford should have been able to perform the duties required for Water and Sewer with medications that were available in 1988 for treatment of asthma. It is my opinion that Mr. Ford was medically qualified for continuing his job with the Water and Sewer department." Exhibit #1.

6. Complainant had worked out of doors in laborer positions for eight years prior to the asthma diagnosis in 1982, two of those years for the respondent. After diagnosis, complainant continued to work for six additional years in similar positions with no accommodations and no difficulty. His employment with respondent was not characterized by excessive absenteeism, illness or poor job performance. Respondent's reported concern was with the complainant's cough.

7. Following termination, complainant was unemployed for eight months until 9/6/89. He worked four months and was laid off in 1/90 and rehired from May to November 1990. In October 1991, complainant moved to the state of Washington and obtained employment with his current employer in December 1990. He has never reached the hourly rate that he would have earned with the respondent.

8. Complainant had sporadic health insurance coverage, often purchased as individual policies, for himself and his dependent nephew, until his current employment. Uninsured medical bills were incurred because of high deductibles and non-coverage due to cost and preexisting conditions.

9. Complainant has lost pension benefits and does not expect his earnings to ever overtake those which he would have earned with respondent.


CONCLUSIONS OF LAW

1. Mr. Ford did not have a handicap which interfered with his ability to perform the functions of the job.

2. Mr. Ford did not present a hazard to himself or others when performing the job in question.

3. The Commissioners of the Plymouth Village Water and Sewer District regarded Mr. Ford as having an impairment which substantially limited one or more major life activities employment.

4. The termination of Mr. Ford's employment based on regarding him as having an impairment which substantially limited one or more major life activities constitutes disability discrimination in violation of RSA 354-A:8, I.

5. The respondent is liable to the complainant for lost wages, medical expenses, attorneys' fees and other damages to be addressed in a separate decision.


ORDER

Based on the Findings of Facts and Conclusions of Law, the Commission orders the following.

A. The parties will work together to obtain the health insurance policies covering employees of the District during the period from September, 1988 through the present. The complainant shall execute a release of information document in order to facilitate the procurement of the policies.

B. The parties shall meet and compare the policies to determine the differences in coverage between the policies in effect for the District and the coverage Mr. Ford actually had during the period. The parties shall prepare a statement of agreement, insofar as agreement can be reached, of the differences in coverage and shall submit the statement to the Commission.

C. The parties are ordered to submit briefs to the commission on the issues of future damages and interest on the judgment. Counsel is asked to submit arguments supported by case law which would set the parameters for future losses. Counsel is also asked to address whether interest on the judgment should be ordered from date of filing and, if so, at what rate.

D. The submissions referenced in this order shall be filed with the Commission within 30 days.


Commissioner Michael R. Chamberlain
Commissioner Gail Paine
Commissione Loren Jean


Edward R. Ford
v.
Plymouth Village Water and Sewer District

EPH 3811-89

ORDER ON DAMAGES

By decision issued on December 8, 1995, the Commission found that Plymouth Village Water and Sewer District had discriminated against Edward R. Ford based on his disability in violation of RSA 354-A:8, I. The Commission found that Plymouth was liable to Mr. Ford for his lost wages, medical expenses, attorneys, fees and other damages to be addressed in a separate decision. The Commission ordered the parties to cooperate in obtaining health insurance information and, insofar as possible, to submit a statement of agreement. The parties were also ordered to submit briefs on the issues of future damages and interest on the judgment. The complainant submitted a copy of the applicable Blue Cross Blue Shield policy, a memorandum of law, a revised summary of damages and an itemized statement of attorneys' fees. The respondent made no submissions.

After reviewing the documents submitted, considering the testimony at the hearing and researching applicable law, the commission issues the following orders:

1. Back Pay. The Commission is authorized by RSA 354-A:21, II(d) to award back pay upon a finding of discrimination. See also E.D. Swett, Inc. v. NH commission for Human Rights and Leonard Briscoe, 124 NH 404 (1983). The Commission adopts by reference pages 3 through 5 of complainant's Amended Summary of Damages which calculates the differential between Mr. Ford's actual earnings and what he would have earned had he continued his employment with Plymouth. This calculation complies with the requirements of RSA 354-A:21,III(e).

Accordingly, the respondent is ordered to pay Edward R. Ford the sum of $46,338 in back pay.

2. Medical Costs. A benefit of Mr. Ford's employment by Plymouth was group health insurance. Following his termination, he incurred costs for health insurance premiums and for uninsured medical bills. The commission is authorized by RSA 354-A:21, II(d) to order these damages paid by respondent as an element of back pay. The purpose of the back pay remedy is to make the complainant whole. If the complainant would have received these amounts but for the respondent's unlawful action, then they are proper subjects for inclusion in the back pay award. Larson, Employment Discrimination, Section 92.07. See e.g. EEOC v. Wilson Metal Casket Company, 64 FEP Cases 1402 (6th Cir. 1994).

Accordingly, the respondent is ordered to pay Edward R. Ford the sum of $5,632.81 for health insurance premiums he paid and the sum of $7,054.63 to compensate him for medical bills not covered by insurance. The Commission adopts by reference the calculations found on page 6 through 10 of the Complainant's Amended Summary of Damages.

3. Retirement Benefits. Based on the same authority described in Paragraph 2 above, the commission has the power to award lost retirement benefits. The commission adopts by reference the calculations found on pages 11 through 13 of the Complainant's Amended Summary of Damages.

Accordingly, the respondent is ordered to pay Edward R. Ford the sum of $4,621.89, which is the amount the respondent would have paid into the NH Retirement System an Mr. Ford's behalf.

4. Interest. As part of the back pay remedy under RSA 354-A:21, II(d) the Commission has the authority to award prejudgment interest. Loeffler v. Frank, 486 U.S. 549, 108 S. Ct. 1965, 100 L. Ed. 2nd 549 , 46 FEP Cases 1659 (1988). The applicable rate for the time period in question, as established by RSA 336:1, is ten percent.

Accordingly, the respondent is ordered to pay Edward R. Ford the sum of $28,920 in prejudgment interest. The commission adopts by reference the calculations on page 14 of the Complainant's Amended Summary of Damages.

5. Attorney's Fees. The Commission has the-authority to award attorney's fees under RSA 354A:21, II(d). E.D. Swett, Inc. v. New Hampshire Commission for Human Rights and Leonard Briscoe, 124 NH 404 (1983). The commission has reviewed the itemized statement and affidavit submitted by complainant's counsel.

Accordingly, the respondent is ordered to pay attorney's fees to the Law Firm of Backus, Meyer, Solomon and Rood in the amount of $16,113.96 and to the firm of Cook and Molan in the amount of $2,990.79.

6. The Commission has been asked by the complainant to award front pay for the next 25 years in the amount of $86,450 and to award future loss of pension benefits in the amount of $12,733.50. The Commission rules that it has the equitable authority to award front pay as an alternative to reinstatement in appropriate cases. Scarfo v. Cabletron Systems, 54 F. 3d 931, 67 FEP 1474 (1st Cir. 1995). However, the Commission declines to enter such an order in this case because Mr. Ford earned a greater income from his new job in 1995 than he would have if he still worked for the respondent. Moreover, the Commission finds that the award for lost wages and benefits adequately compensates Mr. Ford for his losses. Granting a request for front pay 25 years into the future would be too speculative.

Accordingly, Plymouth Village Water and Sewer District is ordered to pay the sum of $111,672.96 to Edward R. Ford through his counsel within 30 days of the date of this order.

So ordered.

June 19, 1997
Commissioner Michael R. Chamberlain
Chair of the Hearing Panel

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