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10May, 17

On April 21, 2017, a New Hampshire federal judge ruled in the case of Wanda Duryea v. MetroCast Cablevision of New Hampshire, LLC, et al.  that Wanda Duryea could not go forward to a jury on a variety of her employment disability claims related to her firing because both she and her doctor agreed that: her chronic obstructive pulmonary disease (“COPD”) precluded her from working; her COPD was not expected to improve; and Duryea could not therefore perform the essential functions of her job with or without a reasonable accommodation. This left Duryea to go to the jury on her claim of a hostile work environment due to her disabilities.

On March 30, 2009, MetroCast hired Duryea as a technical service representative in its Rochester, New Hampshire call center.  Duryea worked for MetroCast until she was fired on August 27, 2014.  During her employment, Duryea stated she had a number of disabilities including bilateral tibial tendinitis (a condition that results in severe foot pain especially when walking), asthma and emphysema, daily back pain, ear pain, vertigo, nausea, tinnitus, loss of hearing, and ultimately in 2014 COPD.

During her tenure with MetroCast she alleges that her co-workers and supervisors made several disparaging remarks including giving her grief for wearing sneakers when the facility’s handbook required business casual footwear, even though she had a doctor’s note. She states that there were several other comments about her disabilities and one substantial event occurring at a work-related dinner.  Duryea, who was in a wheelchair at the time, spilled a drink on the floor.  Duryea states her supervisor told her to clean up the floor herself leaving Duryea to have to crawl out of her wheelchair onto the ground and clean up the spill while watched by many people. Her supervisor eventually allowed a co-worker to assist her in the spill cleanup. The Court stated that if her allegations were proven to be true to a jury, the jury could award her damages for her claim for a hostile work environment related to her disabilities. However the Court held that a worker cannot claim a wrongful firing when the evidence is incontrovertible that she cannot do her job and that her health restrictions will continue to prevent you from doing the job indefinitely.

The judge also ruled that employers are generally entitled to get a doctor’s certification to backup an employee’s claim that they have a disability that needs an accommodation for a disability; whether for a better parking spot closer to the work facility or other accommodations. The decision is 39 pages with a strong factual and legal analysis of several issues that sometimes arise in an employment disability case.

 

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.