Federal Court Denies Summary Judgment in ADA Case Against Durham, NH

A federal judge has denied the Town of Durham’s motion for summary judgment in a lawsuit filed by a former firefighter who claims he was terminated in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and New Hampshire law.

Former firefighter John Powers was fired in 2020 after he refused to release the results of a fitness for duty evaluation that he was ordered to undergo. That termination prompted this lawsuit, which was filed in US District Court for the District of New Hampshire.

The court explained the facts as follows:

• Durham’s Fire Chief, David Emanuel, was fully aware of Powers’s disability due to PTSD and its symptoms. Emanuel and Powers worked together in the Durham Fire Department from 2011 to 2016.
• Powers had PTSD when he was hired, a condition the fire department was aware of when he was hired. Indeed, Durham allowed Powers time for weekly therapy sessions during his working hours. Emanuel knew that Powers suffered from PTSD and that he attended weekly therapy sessions.
• At that time, both Emanuel and Powers worked under Chief Landry, who was a difficult boss. Emanuel and Powers began to discuss their work challenges and details of their lives over lunch and on walks.
• As a result of their conversations, Emanuel came to understand that PTSD symptoms might include paranoid episodes, antisocial behaviors, and loss of focus and Concentration.
• Powers explained to Emanuel that his PTSD frequently manifested in symptoms of panic and rumination, particularly when confronted by conflict related to his work or job security.
• Powers often discussed his difficulty communicating with Chief Landry and that Chief Landry triggered Power’s PTSD symptoms by confronting him suddenly with criticism of his work performance.
• Powers left Durham in 2016 to work for the Rochester Fire Department. Powers and Emanuel remained close friends and continued to communicate after Powers’s move to Rochester. In 2018, Chief Landry left the Durham Fire Department and Emanuel became chief.
• Powers then returned to Durham to work under Chief Emanuel. By the fall of 2019, however, their relationship began to deteriorate. Emanuel was concerned about Powers’s work performance, including complaints about his driving while in a fire department vehicle, the tone of some of his work communications, and his failure to attend several meetings without first communicating that he would be unavailable.
• Powers considered it difficult to communicate with Emanuel, which he believed was triggering his PTSD symptoms. By early 2020, Powers thought his relationship with Emanuel had become adversarial.
• On January 17, 2020, Powers asked to meet with Emanuel one-on-one to discuss their communication issues and Emanuel’s expectations of him. Powers says that meeting never occurred. In a different meeting among Chief Emanuel, Powers, and a consultant, who was hired to improve the fire department’s working culture, Powers attempted to raise those same communication and expectation issues. The consultant responded that Powers was causing problems and undermining Emanuel’s authority as Chief.
• Emanuel prepared a Performance Improvement Plan (“PIP”) for Powers, which he presented to Powers at a “Chief’s Meeting” on February 27, 2020, without prior warning. Emanuel explained later that he surprised Powers with the PIP because otherwise Powers would have avoided that conversation. Powers was surprised and uncomfortable when Emanuel began to read the PIP to him aloud at the meeting.
• Powers twice asked Emanuel to stop reading and to allow him to take the PIP to read to himself and respond, but Emanuel continued to read the PIP aloud.
• When Emanuel read a section of the PIP that required Powers to be at the station during all days and all business hours, Powers became distraught because he understood that requirement revoked his leave to attend weekly therapy sessions for PTSD during work hours.
• Powers was obviously agitated and shaking and excused himself from the meeting.
• After the meeting, Emanuel drafted a memo that questioned Powers’s state of mind after the PIP meeting. Powers responded to a text from Emanuel that evening, saying that he made it home safely but was not “okay”.
• The next day, Emanuel informed Powers that he was suspended from the department because of his reaction to the PIP. Emanuel ordered Powers to have a fitness for duty (“FFD”) evaluation.
• The evaluation was scheduled. Powers submitted a grievance to Emanuel challenging the PIP and the ordered evaluation. Emanuel thought Powers was out of line by filing the grievance and notified Powers that there was no grievable issue. He required Powers to return and finish listening to Emanuel read the PIP.
• Powers attended the scheduled FFD evaluation but would not release the results to Durham while his grievance was pending.
• Emanuel, in turn, fired Powers on March 19, 2020, because he did not submit the results of the FFD evaluation.
• The town administrator notified Powers the next day that his grievance was not valid.

Powers alleged disability discrimination and retaliation. He claimed the town failed to accommodate his PTSD by refusing his requests for communication adjustments, revoking his therapy leave, and disregarding grievance procedures. He also argued that Chief Emanuel knowingly provoked his PTSD symptoms during the PIP meeting.

The Town moved for summary judgment, arguing that Powers never explicitly requested accommodation, that the fitness-for-duty exam was a business necessity, and that his termination was based on his refusal to release the exam results.

The court, however, found that genuine disputes of material fact precluded summary judgment on both the discrimination and retaliation claims.

Judge Steven J. McAuliffe noted that a jury could conclude that Emanuel was unusually familiar with Powers’s disability and may have used it against him. The case will proceed to trial. Here is a copy of the decision.