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HERMAN v. CITY OF ALLENTOWN

November 21, 1997

DAVID B. HERMAN, Plaintiff,
v.
CITY OF ALLENTOWN, Defendant.



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 November 21, 1997

 I. BACKGROUND

 Plaintiff, a former firefighter for the City of Allentown ("City"), has sued the City for discrimination under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff was dismissed from the Fire Department after he was arrested for altering a prescription for the pain killing drug called Percocet. Plaintiff filed a grievance with his local union and the City agreed to rehire him subject to certain conditions. Defendant later changed those conditions in order to prevent the Plaintiff from being rehired.

 This court has subject matter jurisdiction since this case arises out of the laws of the United States. Venue lies in this district. All conditions precedent to the institution of this suit have been fulfilled. On July 18, 1996, a Notice of a Right to Sue was issued by the United States Department of Justice and this action has been timely filed within 90 days of the receipt of that notice. Plaintiff has exhausted all administrative remedies prior to filing this lawsuit. This suit is ripe for our consideration.

 For reasons that will be discussed in the remainder of this Decision, we find that the Defendant intentionally discriminated against the Plaintiff in violation of the ADA when the City refused to rehire him. We will order the City to rehire the Plaintiff and award the Plaintiff back pay (with interest) and attorneys fees.

 II. FINDINGS OF FACT

 1. Plaintiff David B. Herman was hired by the City of Allentown as a firefighter on July 8, 1987. Tr. 9/22/97 at 20.

 2. Plaintiff received satisfactory work performance evaluations while he was employed by the City. (Plaintiff's Exs. 1, 2 and 3).

 4. Plaintiff sought treatment for his back injury with his family doctor. The doctor prescribed a medication known as Percocet for the pain associated with the back injury. Tr. 9/22/97 at 7.

 5. Plaintiff violated the Fire Department's rules and regulations by never informing his supervisors that he was taking this prescription medicine. Tr. 9/22/97 at 49-50, 52.

 6. Plaintiff became dependent and addicted to Percocet. Tr. 9/22/97 at 25-26.

 7. In May of 1994, Plaintiff altered two prescriptions for Percocet which had been prescribed for him by his family doctor. Plaintiff changed the amount of pills prescribed from 6 to 16. Plaintiff admitted that he altered two prescriptions. Tr. 9/22/97 at 27, 51, 59.

 8. Plaintiff was arrested on May 3, 1994, for altering his Percocet prescriptions in violation of Pennsylvania criminal law. Tr. 9/22/97 at 27-29.

 9. The criminal charges were disposed of without a trial. Plaintiff was placed on Accelerated Rehabilitative Disposition ("A.R.D.") and his criminal record was expunged in June of 1995. Tr. 9/22/97 at 9, 28.

 10. As a result of the said criminal charges, Plaintiff was suspended from active duty as a firefighter in May of 1994, and was thereafter terminated on October 17, 1994.

 11. Shortly after his arrest in May of 1994, Plaintiff sought professional help for his drug dependency problem. He consulted with Mr. Richard O'Donnell, the Director of the Lehigh County Drug and Alcohol Intake Unit. Tr. 9/22/97 at 10-11, 29, 99.

 12. Plaintiff also met with Dr. Valella for counseling purposes. Tr. 9/22/97 at 10-11, 28-29.

 13. Mr. O'Donnell, after evaluating Plaintiff on May 12, 1994, found that he "does not evince any present form of dependency on alcohol or any other drug." (Plaintiff's Ex. 11).

 14. Plaintiff testified that he stopped taking Percocet since the day he was arrested in May of 1994. No evidence was presented that this was not the case. Tr. 9/22/97 at 10, 11, 28-29, 99.

 15. Plaintiff challenged the termination of his employment by filing a grievance through his union. An arbitration hearing was scheduled for February 1, 1995. Tr. 9/22/97 at 12, 30-31.

 16. On February 1, 1995, the City, the Union, and the Plaintiff signed a settlement titled Settlement Memorandum By and Between the City of Allentown and Local No 302 IAFF. (Plaintiff's Ex. 4).

 17. The settlement stated:

 (a) That the City would restore the Plaintiff as a firefighter on February 11, 1995;

 (b) That Plaintiff would be subject to random drug tests for three years;

 (c) That Plaintiff would authorize the release of all information regarding his taking of prescription drugs to the City;

 (d) That Plaintiff would sign a release authorizing the EAP (Employee Assistance Program) to release any information concerning his treatment under that program;

 (e) That Plaintiff must be cleared for return to work by a doctor selected by the city;

 (f) That Plaintiff would take a drug test on February 1, 1998;

 (g) That Plaintiff could complete any EAP aftercare while on duty during non-work hours;

 (h) That the Union would pay the arbitrators fee for February 1, 1995;

 (i) That the Plaintiff would be discharged immediately for any future drug related offenses and that the Union would file no grievance, arbitration demand, or unfair labor practice charge;

 (j) That the City would be entitled to consider Plaintiff's drug offense as part of the Plaintiff's disciplinary record;

 (k) That the Plaintiff would be entitled to back pay for the period between May 4, 1994 and February 11, 1995.

 (m) That the Plaintiff would have to make employee contributions to the pension fund if he wanted to have pension credits between and May 4, 1994 and October 17, 1994;

 (n) That the Union would withdraw with prejudice from the arbitration resulting from the grievance filed by the Plaintiff on May 9, 1994;

 (o) That the settlement would be made without prejudice to any future cases involving the fire department; and

 (p) That the settlement would remain confidential.

 18. This settlement was signed by the Union, the City, and the Plaintiff on February 1, 1995. (Plaintiff's Ex. 4).

 19. Pursuant to the agreement, Plaintiff took a drug test on February 1, 1995. Prior to the administration of the test, Plaintiff disclosed to the test takers that he had been taking cough medicine with codeine which had been lawfully prescribed by his physician for the treatment of bronchitis. Tr. 9/22/97 at 33-35. Plaintiff did not inform the prescribing physician about his prior problems with Percocet. Tr. 9/22/97 at 59-60.

 20. The drug test results were positive for the cough medicine prescribed by Plaintiff's family physician. Tr. 9/22/97 at 35.

 21. The positive drug test results were transmitted to Jenny Lilly, the Assistant Manager of Human Resources for the City. Ms. Lilly was involved in the decisions regarding Plaintiff ...


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