LISA REDMOND
Lowell Sun

WOBURN - The Lowell Fire Department discriminated against a fire captain when it refused to let him return to work in 1997 after suffering asthma attacks, a Middlesex Superior Court jury has ruled.

The captain, James McLaughlin, was awarded $350,000 in damages, according to a statement from McLaughlin's attorneys, Betsy Ehrenberg and Al Gordon of the Boston law firm of Pyle Rome Ehrenberg PC. McLaughlin has been on disability retirement since 1997.

Reached at his Pelham home, McLaughlin, 60, called the verdict a "somber victory."
"I'm not happy" with a retirement disability check, he said. "I'm a worker and I'm not happy being on the dole," McLaughlin said. "I tried to return to work and the city's manipulation caused me not to."

In response to the verdict, Lowell City Solicitor Christine O'Connor said, "The city certainly denies any discrimination against anyone with asthma or any other illness."

The city is preparing post-trial motions to see if the verdict can be overturned or the award reduced, she said.

McLaughlin retired from the Fire Department on a disability pension in February 1997 after several asthma attacks. He applied to return to work four years later after recovering his health and achieving control of his "mild asthma," according to his attorneys.

McLaughlin said he only has a few years left before reaching 65, the mandatory retirement age for firefighters. He said he would have preferred to spend his last few years fighting for the city rather than fighting against it in court.

McLaughlin has worked for 12 years in a hardware store. He said he was laid off last month.
Ehrenberg and Gordon argued during the seven-day trial that McLaughlin had been cleared to return to work by a series of state-appointed medical specialists, including a three-member "restoration to service" medical panel.

With a unanimous medical panel, retirement law would have required the city to restore McLaughlin to his former position, if vacant, or to the next available vacancy in the post, his lawyers told The Sun. Instead of returning to work, McLaughlin watched the city fill no fewer than seven vacant captain positions over the years, according to his attorneys.

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. McLaughlin said the increased salary was "not a consideration."

Lowell Assistant City Solicitor Kim McMahon noted 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.

In its verdict, the jury found that the city of Lowell discriminated against McLaughlin because of his asthma and prevented him from qualifying to return to service by "fabricating a prohibition against inhaler use by working firefighters," according to McLaughlin's attorneys. Based on that ban against the use of inhalers, one of the three medical panel members who cleared McLaughlin to return to work then reversed his opinion, the attorneys said.

Without a unanimous medical panel, state retirement law prevented Lowell from reinstating McLaughlin.

McLaughlin said his case is the first and only time this "inhaler policy" has been used.

"The city manipulated the whole situation so I couldn't return," he said.

But McMahon explained there is no policy that prohibits the use of an inhaler.

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. This would include not taking off a mask to use an inhaler, she said.

"The standpoint of the city is that public safety is the priority for the individual firefighter and the general public," O'Connor said.

Copyright 2010 MediaNews Group, Inc.
All Rights Reserved
December 16, 2010