Nebraska Firefighter’s Disability Claim Dismissed

A judge has dismissed part of a discrimination lawsuit by a former York, Neb., firefighter and paramedic who was fired after breaking her foot, but found sufficient evidence that the city treated her less favorably than it had a male firefighter disabled three years earlier.

The judge, however, said Lisa Peter may not be able to show that she would have been able to return to the strenuous job even if the city had afforded her the same treatment it gave her male colleague.

Peter sued the city last year, saying a city administrator repeatedly denied her requests for light duty after she broke her heel in a non-work-related accident in April 2010. When she was not cleared to work without restrictions by October 2010 – after she had exhausted her sick days, vacation and federal medical leave allowance – she was fired and replaced by a man.

The same administrator cut the weekly work hours of a male York firefighter, who was hospitalized in 2007 for severe pancreatitis, to ensure he would not run out of leave, her lawsuit says. The firefighter was also placed on light duty instead of fighting fires on regular 24-hour shifts.

Peter’s lawsuit says York violated federal law protecting those with disabilities and forbidding gender discrimination.

The city argued that the discrepancy happened because the man’s illness was more serious than Peter’s injury, there was no light duty available when Peter was injured and federal law did not require the city to create a light duty position.

U.S. District Judge John Gerrard dismissed the city’s arguments in an order issued Monday, saying he failed to see the legal relevance of the male firefighter’s illness being more serious than Peter’s injury.

“They were both unable to work, and both at risk of exhausting their available leave, but treated differently,” Gerrard wrote.

As for the assertion that the city wasn’t required to create light duty work for Peter, “That may be, but it is no reason for treating employees differently on the basis of gender,” the judge wrote.

Gerrard dismissed Peter’s disability discrimination claim, saying that because she could not perform the essential functions of being a firefighter and paramedic with an injured foot, she was not a qualified person under the Americans With Disabilities Act.

But Gerrard said it’s clear York treated Peter less favorably than it had her male colleague and that the city’s reasons for doing so “are pretextual.”

It appears Peter would have run out of medical leave before she was cleared to return to work in January 2012, the judge said, even if she had been given the same treatment as her male colleague. That could invalidate Peter’s discrimination claim, because she must be able to show a link between the discriminatory treatment and her firing, Gerrard said.

The judge has given Peter until Sept. 3 to submit a brief and evidence explaining how the city’s alleged discrimination is to blame for her firing. The city has until Sept. 13 to respond.

Peter’s attorney, Kathleen Neary, declined to comment on the judge’s order, but said she would file a brief by the deadline.

Attorneys for the city did not immediately return email and phone messages left Thursday seeking comment.