Eddie Haynes worked as a firefighter for the city of Montgomery, Ala., for 16 years, beginning in April 1990. In November 2002, Haynes began seeing a psychiatrist for symptoms of anxiety. The physician diagnosed Haynes with generalized anxiety disorder and prescribed various medications. Three months later, Haynes' lieutenant sent him home from work until he could present verification from his physician regarding the possible side effects of the medications he was taking. The lieutenant's actions allegedly were precipitated by Haynes' statement that he did not feel comfortable driving the fire truck, which Haynes denied. The physician faxed to the city fire chief a letter that explained that Haynes suffered no side effects from his medications, had no work restrictions and could continue to work. The fire department allowed Haynes to report back to duty the same day.

Two years later, Haynes' captain wrote a memo to the district chief requesting that Haynes be transferred to another shift because Haynes “is overly cautious while he is driving.” The captain informed Haynes of this action the next day. Haynes replied that he had no problem driving. Four days later, the captain advised Haynes that the city insisted that Haynes write a letter listing the medications that he was taking. Haynes complied with the city's request. Haynes also submitted another letter from his physician, reiterating the first letter.

On March 15, 2005, an assistant chief informed Haynes that he was being placed on sick leave pending a determination of whether he could perform his duties while taking his medications. The assistant chief informed Haynes that he would be able to return to work only if the city risk manager and the city doctor released him. On March 24, Haynes met with the city's physician, Michael Turner, who reviewed Haynes' physician's second letter. The group discussed Haynes' medications, and Haynes signed a release for his medical records. On March 28, Haynes' physician faxed his office notes to the fire department, which included Haynes' diagnosis of generalized anxiety disorder.

The March 24 meeting was not the first time that Haynes saw the department physician. In September 2004, the physician treated Haynes for a slight knee injury. At that time, Turner learned that Haynes was taking Zoloft, Valium and Gabitril. The physician released Haynes for duty without informing the city that he had any concerns about Haynes taking these medications. Turner conducted Haynes' fit-for-duty examination on March 31, 2005. At that time, he reviewed the information from Haynes' family physician. Turner was concerned only with Haynes' use of Lexapro, Valium and Gabitril. Haynes informed Turner that the only medication he was taking while on duty was Lexapro, “an antidepressant, anti-anxiety medication,” and that he experienced no side effects.

After the examination, Turner drafted notes that were sent to the city, which reflected that the firefighter was physically fit to return to duty. However, Turner did not expressly release Haynes for work and instead concluded that “[an administrative] decision is needed.” Turner did not provide a release because he expressed concerns about the possible side effects of the medications; even though Haynes' drug screen was negative, side effects could vary from person to person, and there was no reason to disbelieve Haynes' own physician's assessment that there were no side effects as a result of the medications.

The court record further reflects that Turner never attempted to discuss the medications with Haynes' physician, nor did he ask Haynes for any additional information. Turner did not test Haynes' physical or mental functioning, did not review recent medical literature and did nothing else to determine if Haynes actually had side effects. Turner later testified that he would not have cleared Haynes for any job that involved driving a vehicle of any sort, working in a safety-sensitive position or working on the fire line.

Following the examination, Haynes asked various fire department personnel about returning to work. He was told that he could not come back to work until Turner cleared him. When Haynes asked Turner's office about clearance, he was told that it was the city's decision. In April 2005, Haynes' physician wrote another letter in which he stated that Haynes was able to work without taking Valium or Gabitril at all, but neither the city nor Turner would clear Haynes because Turner still was concerned about the Lexapro. During 2005 and 2006, Haynes continued his efforts to be cleared for work, to no avail.

In a letter dated May 4, 2006, the fire chief told Haynes that if he did not return to work by May 22, 2006, he would be considered to have resigned his position by job abandonment. When Haynes reported to work on May 22, 2006, he was sent home but was allowed to see Turner three days later. Turner only asked about Haynes' medication and learned that nothing had changed. Haynes later received a letter from the city dated June 20, 2006, which informed him that effective June 14, 2006, the fire department deemed him to have voluntarily resigned.

Ultimately, Haynes filed a lawsuit in federal court against the city. (Haynes v. City of Montgomery, Alabama, 2008 WL 695023 (M.D.Ala.)). He alleged that the city's actions of placing him on involuntary leave, refusing to reinstate him to employment and terminating his employment violated the American with Disabilities Act, (42 U.S.C. § 12112(a)). He also alleged that the city violated the ADA by requiring him to submit to prohibited medical examinations and inquiry. Finally, Haynes alleged that the city's use of impermissible qualification standards also violated the ADA. In his complaint, Haynes sought declaratory and injunctive relief, back pay and compensatory damages, reinstatement to employment or front pay, costs, fees and expenses. The fire department filed a motion for summary judgment seeking to have the district court dismiss the lawsuit. The city argued that it was entitled to judgment as a matter of law based on the facts presented to the court.

The court analyzed whether Haynes had established a prima facie case of disability discrimination against the city. The court noted that Haynes was required to show:

1. That he had a disability.

2. That he was a qualified individual.

3. That the city unlawfully discriminated against him because of the disability.

The city argued that Haynes was not able to meet the first and third elements of a prima facie case of discrimination.

The court noted that the ADA defines a disability as: “(A) a physical or mental impairment that substantially limits one or more of major life activities of such an individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” (42 U.S.C. § 12102(2)) The court also noted that a person is regarded as having such an impairment if an employer either “mistakenly believes that a person has a physical [or mental] impairment that substantially limits one or more major life activities” or “mistakenly believes that an actual, non-limiting impairment substantially limits one or major life activities.” The latter provision is met when a person is perceived as being significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.

Traditionally, courts have held that the inability to serve as a firefighter constitutes the inability to perform a single, particular job, but does not constitute a substantial limitation in major life activity of working. The city made this argument by claiming that, “The life activity of working as a firefighter is not a broad range of jobs.” Haynes countered by arguing that Turner regarded Haynes as being substantially limited in the ability to do jobs involving hazardous work due to the possible side effects of the medications prescribed for generalized anxiety disorder. Furthermore, the unrefuted testimony of Haynes' own hired expert showed that the perception foreclosed Haynes from a broad range of jobs.

The city further argued that Haynes was not cleared for duty because of his medications, not because he had an impairment. However, the court noted that Haynes' position was correct in that the effects of mitigating measures should be considered in the determination of whether a person is substantially limited in the major life activity of working.

The court also pointed out that the city's argument failed for a more fundamental reason — that it was a factual argument that should be resolved by a jury, not by the trial judge. The court pointed out that not only was it undisputed that Haynes had an impairment as defined by the ADA, but that Haynes also demonstrated that a genuine issue of material fact existed as to whether the city's attitudes, beliefs or perceptions of the impairment, including any mitigating measures such as medications, resulted in Haynes being limited substantially in the major life activity of working.

The court pointed out that Turner knew that Haynes had been diagnosed with generalized anxiety disorder and had been taking medications for that impairment, yet he wrote in his office notes: “[Haynes] states that he does not take any medications but the Lexapro while on duty. This logic makes no sense to me that you would need to take the medicine on your days off while not under stress but not need it when in the most stressful situations.” The court found that a jury could conclude that the city, by adopting Turner's opinion, discriminated against Haynes by not making an individualized assessment of Haynes' present ability to perform the job safely and not deciding based on the most current medical knowledge and the best available objective evidence.

Because Haynes was able to establish a prima facie case of disability discrimination against the city, the court shifted the burden of proof to the city to articulate a legitimate, non-discriminatory reason for terminating Haynes. In response to this requirement, the city claimed that Haynes was not fit for duty because he did not meet National Fire Protection Association standards, including NFPA 1582, which guides a fire department's physician in evaluating a firefighter's ability to perform the essential job tasks.

In response, Haynes demonstrated that the city's reliance on NFPA 1582 standard was merely a pretext for discrimination. Haynes submitted evidence from which the court inferred that:

1. The city had not adopted the relevant NFPA medical standard.

2. The NFPA standard did not prohibit the use of Lexapro.

3. Turner did not have concerns about Haynes' job performance in September 2004, when he was using similar medications.

4. The city allowed Haynes to work while taking the medication since January 2003 and that Haynes had no performance problems during that time.

5. The city attempted to avoid liability by pushing the responsibility of clearing Haynes to Turner, who found Haynes to be physically fit for duty yet refused to release him.

The court found that these facts were “sufficient for a jury to conclude that ‘the employers proffered explanation is unworthy of credence’” and that the real reason for placing Haynes on involuntary unpaid leave and terminating his employment was discrimination because of a disability.

The court also covered Haynes' complaint that the city had acted discriminatorily by requiring him to undergo medical examinations and by making medical inquiries of him not shown to be job-related and consistent with business necessity. The ADA requires that an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity;” However, an employer “may make inquiries into the ability of an employee to perform job-related functions.”

In its motion for summary judgment, the city argued that the fit-for-duty examination challenged by Haynes “was job-related for the position of firefighter and consistent with business necessity.” In support of its argument, the city claimed that it followed NFPA standards, including NFPA 1582, in evaluating Haynes' ability to perform essential tasks in light of the medications that he was taking.

The court acknowledged that in light of public safety considerations, the ADA would permit the city to subject Haynes to a fit-for-duty examination. Haynes agreed, but argued that there was a violation because the city exceeded the scope of a permissible examination, the examination that was given was not job-related, and there was no business necessity for such an extended examination inquiry when Turner had determined that Haynes was physically fit for duty and merely speculated about possible, but not actual, side effects. The city did not explicitly address Haynes' scope argument, and therefore the court determined that the city was not able to carry its burden of proof in showing that no genuine issue of material fact existed. The court again concluded that the city was not entitled to have the case against it dismissed.

The case proceed to a jury trial in March 2008. After three days of hearing testimony and evaluating the evidence, the jury returned a verdict in favor of Haynes, finding that he established disability and qualification standards claims (but not a medical examination claim). A jury awarded $90,000 in back pay and $270,000 for emotional pain and mental anguish. A motion for attorney fees in the approximate amount of $109,000 is pending before the court.

There are a number of important lessons from this case.

1. One could infer that the supervisors' and city's adverse employment actions against Haynes were motivated by some on-the-job conduct or perceived abnormal behavior by Haynes. However, the city failed to document any behavior which would provide the basis for disciplinary action. Instead, the city relied on medication side effects to suspend an employee, which is not a legitimate basis for such an action, especially when a contrary physician's opinion exists. In cases where a firefighter's behavior is erratic or is otherwise at issue, the fire department must document those instances. Such documentation must address the specific facts, without raising issues that may affect constitutionally or statutorily protected causes.

2. Many ADA claims from the past decade against fire departments have been unsuccessful due to prior court decisions which held that the inability to serve as a firefighter does not give rise to an ADA claim. This case suggests that a fire department's formal position regarding the firefighter's condition and inability to work may, in and of itself, cause the firefighter to be perceived as being unable to perform a “broad range of jobs,” thus giving rise to an ADA-based claim. In assessing a firefighter's physical abilities, a fire department administrator and physician should focus solely on the physical nature and demands of a firefighter's job, not speculate as to how a physical or mental condition may impact the firefighter in other job classifications.

3. NFPA standards can be a sword or shield. However, fire departments that are going to rely on such standards must be fully familiar with them. Departments must use the standards consistently, and where appropriate, adopt the standards as rules, regulations, procedures or guidelines. All such rules and standards should be applied objectively.

4. When a fire department hires a physician or other outside expert, that individual should act independently based on current medical or other scientific practices. Independent witnesses must be able to render professional opinions based only on specific objectives, even if the fire department may not like the decision or outcome.

5. In cases involving medical issues, a physician should state whether or not a firefighter is able to fulfill the physical requirements of a specific job. Administrators are not qualified to make such decisions, as they do have the necessary expertise. Physicians also are able to provide recommendations to fire department administrators regarding departmental policy. With respect to policy decisions, administrators have the final say. In a case such as Haynes, however, fire officials have little discretion and must rely on their experts, who should apply standards that clearly are related to job performance.

6. Ultimately, a court will view a fire department's quasi-disciplinary action against a firefighter, which may include repeated requests for information, documentation or forced leave, without proper documentation, as simple harassment of the firefighter. Worse, the firefighter may view the activities as illegal. Fire department administrators must realize that cases will be resolved by people not familiar with the individual parties who will view a fire department's actions with hindsight in lieu of current legal standards, including those found in the ADA.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.