Donald Gillis began to work as a firefighter for the Town of Hull, Massachusetts in 1965. In 1985, he fell from a fire truck and was injured. Gillis was found disabled from returning to work and was put on disability retirement by the Hull Retirement Board.
In late 1994, when Gillis was approximately 58 years old, the Board required Gillis to undergo a medical examination. The appointed physician reported that Gillis’ injury had resolved and that he could now perform firefighter duties. The Board, in turn, requested the approval of the Fire Chief for Gillis’ reinstatement. The Fire Chief refused his approval.
A hearing before the Board resulted. During the hearing, Gillis asked the Chief why he had refused to approve his reinstatement. The Chief responded, “I like you, Don, but I have to think of the Town. I’ll get more bang for the buck by hiring a younger guy.” During this period, there were two vacant firefighter positions available, which the Town filled with two men aged 32 and 30.
The Massachusetts Commission Against Discrimination found that the Town discriminated against Gillis on the basis of age and handicap when it failed to reinstate him. The Commission awarded Gillis $63,106 in damages for lost wages, $50,000 in damages for emotional distress, and $61,212 in attorney fees and costs. The Commission also ordered the Town to pay $94,760 to the Board in repayment of the retirement benefits the Board had paid to Gillis after the Town’s discriminatory act.
The Town appealed the Commission’s decision. The Appeals Court of Massachusetts upheld all of the Commission’s award except that portion dealing with repayment to the Board.
The Court found that “the determination that the Fire Chief prevented Gillis’ reinstatement was a finding of fact supported by substantial evidence. The hearing officer found that, had the Fire Chief approved Gillis’ reinstatement, the Board would have initiated the process for a regional medical panel to examine Gillis and that panel would have cleared Gillis for reinstatement. The Fire Chief’s refusal to approve Gillis’ reinstatement, in other words, caused the reinstatement to grind to a halt, simply because there was no point in conducting the examination if the Chief would not accept Gillis back in any event.”
Though the Court upheld the various awards to Gillis, it did find the order that the Town repay the Board was beyond the Commission’s authority. The Court noted that “the Board, although originally a party to the proceedings before the Commission, had withdrawn at an early stage, with the agreement of all the parties. The Commission could not make an award in favor of a non-party.”
Town of Hull v. Massachusetts Commission Against Discrimination, 893 N.E.2d 66 (Mass.App. 2008).
This article appears in the December 2008 issue