Smith v. City of Sanford

BRIAN SMITH, Plaintiff, v. CITY OF SANFORD, Defendant.

SUPERIOR COURT Civil Action Docket No. CV-17-0272

Superior Court of Maine

August 30, 2019

STATE OF MAINE

YORK, ss.

MEMORANDUM OF DECISION & ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Plaintiff Brian Smith filed this action against Defendant City of Sanford claiming that he was terminated from his position as a fire captain in the Sanford Fire Department in violation of the Maine Human Rights Act. Defendant has moved for summary judgment. For the reasons set out below, the motion is denied,

I. Summary Judgment Factual Record¹

Smith was employed by the Sanford Fire Department from 1982 until 2015. (DSMF ¶ 22.) He held the position of fire captain from June of 1993 until 2015, when he was terminated. (DSMF ¶ 23.)

A fire captain is required to perform the duties of a line firefighter, including extinguishing fires, administering medical treatment, and attending to whatever other needs arise. (DSMF ¶¶ 5, 8; Pl.'s Resp. to DSMF ¶ 5.) Thus, a fire captain is expected to be able to perform strenuous physical work under dangerous conditions. (DSMF ¶ 6; Pl.'s Resp. to DSMF ¶ 6.) Such work can include lifting, carrying and/or using various pieces of equipment (weighing between thirty-three and forty-six pounds each), (DSMF ¶¶ 13-14, 17), and lifting and carrying lengths of four-inch hose (weighing eighty-seven pounds) and ladders (weighing sixty-eight pounds)—work Smith was never personally required to perform without the assistance of at least one other firefighter. (DSMF ¶¶ 15-16; Pl.'s Resp. to DSMF ¶¶ 15-16.) Firefighters are also required to wear equipment weighing up to eighty-two pounds. (DSMF ¶¶ 11-12, 18; Pl.'s Resp. to DSMF ¶ 11-12, 18.)

According to Smith, however, ninety percent of his job as fire captain was spent at the firehouse where he worked at a desk and performed administrative tasks. (PSAMF ¶ 169.) On the scene of a fire, Smith's role as fire captain was to administer the scene; assist senior officers who arrived on the scene; and perform fire investigations, which involved talking to witnesses and gathering information. (PSAMF ¶¶ 170-171, 173.) Although firefighters on scene may be required to assist with removing victims from a fire, in Smith's experience, his role as fire captain was primarily administrative and only rarely involved entering burning buildings and rescuing victims. (DSMF ¶ 19; PSAMF ¶¶ 174-175.)

In January of 2014, Smith was diagnosed with a mildly dilated ascending aorta. (DSMF ¶ 24.) Smith did not inform his employer of his condition, and he returned to work without any restrictions for the remainder of 2014. (DSMF ¶ 25; Pl.'s Resp. to DSMF ¶ 25; PSAMF ¶88.)

In February of 2015, Smith was hospitalized for chest pain. (DSMF ¶ 26.) Dr. Shabbir Reza of Southern Maine Healthcare observed that Smith's enlarged aorta had grown and diagnosed him as having a thoracic aortic aneurism. (PSAMF ¶ 91.) Dr. Reza opined that Smith could return to work but that he should not lift more than forty pounds. (PSAMF ¶ 92.)

The Sanford Fire Department did not have a written policy requiring a firefighter hospitalized for chest pain to be medically cleared before returning to work. (PSAMF ¶89.) Even so, Fire Chief Steven Benotti required Smith to be medically cleared before he returned to work. (DSMF ¶¶ 1, 27.)

Smith sought a second opinion from Dr. Mylan Cohen, a cardiologist with Maine Medical Partners. (PSAMF ¶ 95.) After his April 7, 2015 evaluation of Smith, Dr. Cohen wrote a note, which was provided to Defendant, stating Smith could return to work on April 14, 2015 without restrictions. (DSMF ¶¶ 35-36; PSAMF ¶ 98.) It was Dr. Cohen's opinion that Smith could lift heavy gear and equipment; drag a hose line; carry hand tools while wearing a self-contained breathing apparatus ("SCBA"); raise a ladder while wearing an SCBA; assist in removing a victim from a fire while wearing an SCBA; and that a "risk of rupture of the thoracic aorta at this size is very small." (PSAMF ¶¶ 99, 103.)

Chief Benotti required Smith to see another physician, Dr. Paul Upham at Southern Maine Healthcare, in order to obtain a "Fitness for Duty Evaluation." (PSAMF ¶ 113.) Dr. Upham examined Smith and issued a report used in workers compensation cases known as the M-1 Report that imposed a 40-pound weightlifting restriction pending further consideration. (DSMF ¶ 40.) Chief Benotti informed Dr. Upham that Sanford Fire Department firefighters are expected to be able to lift 100 pounds, (See PASMF ¶ 120; Def.'s Resp. to PASMF ¶ 120.) No such requirement appears in Smith's job description or in Department policies or regulations. (PSAMF ¶¶ 121, 129.) Dr. Upham was also given a copy of the National Fire Protection Association ("NFPA") 1582 standards. (DSMF ¶ 41.)² On May 22, 2015, Dr. Upham subsequently provided theCity with a revised M-1 report increasing the weightlifting restriction on Smith "to seventy-five pounds (performed rarely)." (DSMF ¶ 46.)

Based on the weightlifting restrictions recommended by Drs. Reza and Upham, and without consulting Dr. Cohen, Defendant concluded that Smith would not be allowed to return to work. (DSMF ¶ 48; PSAMF ¶ 124.) On June 5, 2015, Smith met with Chief Benotti, Assistant Fire Chief Cutter, and Sanford's Human Resources Director, Missy Flayhan. (PSAMF ¶ 125.) At the meeting, Smith was informed that he could not return to work due to the seventy-five-pound lifting restriction because he needed to be able to lift 100 pounds in order to perform his duties. (PSAMF ¶ 126.) The parties dispute whether or not Smith agreed with the City's assessment that he could not return to work with the seventy-five-pound lifting restriction, and dispute whether or not Smith admitted he was unable to return to work as fire captain during the June 5, 2015 meeting. (PSAMF ¶¶ 127, 135; Def.'s Reply to PSAMF ¶¶ 127, 135.)

Smith was provided with a retirement packet and discussed options that may be available. (PSAMF ¶¶ 133-34; Def.'s Reply to PSAMF ¶¶ 133-34.) The parties disagree on whether Smith was informed that he "would have to retire" and whether Defendant encouraged him to apply for disability-based retirement. (Id.) Before leaving the June 5^th meeting, Smith said that if he was not going to be allowed to return to work, he would not need to renew his Emergency Medical Services ("EMS") license, a statement with which Assistant Chief Cutter agreed. (PSAMF ¶¶ 137-38.) After the meeting, Smith cleaned out his locker in order to make space for the individual filling in for him. (PSAMF ¶ 139.) Smith remained on disability leave for several months. (PSAMF ¶ 140.)

On October 2, 2015, the City sent Smith a letter notifying him that he would be terminated effective October 31, 2015, stating he had been unable to perform his duties since March of 2015. (PSAMF ¶¶ 142-143.) The letter also stated that the June 5^th meeting had been held "to discuss . . . the City's inability to accommodate the restrictions due to the nature of your position." (PSAMF ¶ 144.) The seventy-five-pound weightlifting restriction was the asserted basis for the termination. (PSAMF ¶ 145.)³ Defendant factored in the weight of worn equipment as counting toward Smith's weightlifting restrictions. (PSAMF ¶ 159.)⁴

Chief Benotti considered Mr. Smith to have an aneurism, which affected his ability to work; believed Smith's condition lasted over six months; and concluded that it "impaired his health to a significant extent compared to what the ordinary public experiences." (PSAMF ¶¶ 155-156.)

II. Standard of Review

Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Stanley v. Hancock County Comm'rs, 2004 ME 157, ¶ 13, 864 A.2d 169; Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 4, 770 A.2d 653. A material fact is "one that can affect the outcome of the case." Dyer v. DOT, 2008 ME 106, ¶ 14, 951 A.2d 821. A genuine issue is raised when sufficient evidence requires a fact-finder to "choose between competing versionsof the truth." Id. (quoting Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶ 9, 878 A.2d 504).

A plaintiff seeking to avoid summary judgment must present a prima facie case for the claim(s) asserted. See Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME 29, ¶ 9, 868 A.2d 220; Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 9, 824 A.2d 48. Facts in dispute are viewed in the light most favorable to the nonmoving party. Reid v. Town of Mount Vernon, 2007 ME 125, ¶ 2, 932 A.2d 539.

III. Discussion

When an employment discrimination claim based on disability is challenged by motion for summary judgment, a "three-step, burden shifting analysis" is applied. Carnicella v. Mercy Hosp., 2017 ME 161, ¶ 16, 168 A.3d 768 cert. denied 2018 U.S. LEXIS 1432 (Feb. 26, 2018); Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 14, 45 A.3d 722. The employee must make an initial prima facie showing with regard to three elements: (1) he has a disability; (2) he is otherwise qualified, with or without reasonable accommodations, to perform the essential functions of his job; and (3) the employer terminated him based in whole or part on his disability. Id. If this showing is made, the employer must establish a legitimate, nondiscriminatory reason for its actions. Id. Then, if the employer meets that burden, the employee must produce evidence that the employer's reason was a pretext. Id.

Defendant has moved for summary judgment on the grounds that Smith has not met his initial burden of establishing a prima facie discrimination claim; Smith was legitimately terminated for safety reasons; and Smith's failure to request reasonable accommodations precludes his claim. The court concludes that Plaintiff has made a sufficient prima facie showing to support his claim and that there are material facts in dispute as to the defenses raised, thereby precluding summary judgment.

A. Plaintiff's...