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Utah's Westminster told to pay nearly $600K for flawed firing

Published September 27, 2012 1:41 pm

Courts • Westminster to appeal finding that it acted unlawfully.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Firing a recovering prescription drug addict will cost Westminster College nearly $600,000, after a federal judge concluded the private Salt Lake City school acted unlawfully toward its longtime mailroom supervisor.

In May, a federal jury decided William Tracy Fowler, who had become hooked on prescription medications following back surgery, was entitled to protection under the American With Disabilities Act. The 1990 law prohibits employers from discriminating against workers on the basis of a disability.

This week, Judge David Nuffer set the amount of the award. He agreed that the college not only discriminated against Fowler but also retaliated against him after he complained of being "harassed" following his return to work from a substance abuse rehabilitation program in April 2005.

Westminster officials declined to be interviewed.

"It is not in our legal interest to delve into the facts of the case in the paper at this point," wrote spokesman Jeremy Pugh in an email. "We stand by our actions in this matter and will move forward with our appeal."

School officials terminated Fowler, now 54, in October 2005 for allegedly showing up to work in an impaired condition. But the judge and jury concluded this accusation was a bad-faith "pretext" for demanding he provide a urine sample, then firing him when it came back positive for drugs he had been prescribed.

The jury awarded Fowler $500,000 on the discrimination finding, but the judge reduced it to a statutory cap of $300,000. The judge's retaliation finding exposed the college to additional damages, which amounted to one year of back pay and benefits plus interest, and $215,000 in attorney's fees, according to Nuffer's Tuesday order.

"We were surprised we only got a year of back pay, but it's still a big award. If they decide not to appeal, we would be happy," said Fowler's lawyer, April Hollingsworth.

"I have been waiting for this for seven years. I'm ready to go bankrupt," said Fowler, of Holladay. "When is this going to end?"

Westminster's lawyers wasted no time fighting the jury verdict and the judge's order.

On Wednesday, attorney Robert Wilde filed a request to set aside the award of attorney's fees, claiming he was not given sufficient time to prepare briefs contesting Fowler's demand for fees.

Since May, the college had been trying to persuade Nuffer to toss the jury verdict, arguing that Fowler was not disabled under the meaning of the ADA, he was "illegally" abusing drugs when he was fired and therefore ineligible for employment, and his firing was not discriminatory.

Fowler was diagnosed with a degenerative spinal condition in 2002 that made it difficult to work. He began taking opiate pain killers and a muscle relaxer, then underwent surgery in 2004. He divulged his subsequent drug dependency to supervisors and completed treatment months before his firing. In court filings, Wilde argued the jury confused Fowler's back and drug problems.

College officials demanded a urine sample and put Fowler on leave on Oct. 18, 2005, in accordance with Westminster's drug and alcohol policies, after several people complained that Fowler was behaving erratically, according to Westminster's filings and defense testimony.

A drug test administered by an independent doctor named Paul Teynor established Fowler was using the muscle relaxant Soma, the painkiller Lortab and Valium. While Fowler said he held prescriptions for all three, Westminster claimed Fowler was taking Soma in excess of the amount prescribed and he had no documentation for a Valium prescription.

In a Sept. 17 ruling, Nuffer rejected all of the college's assertions. Taking drugs in excess of a prescription may not amount to "illegal" drug abuse, and Westminster failed to prove Fowler did that anyway, Nuffer wrote. At trial, Teynor conceded the urine test could not determine how much drug the person took, only whether it was present in his system. While Fowler did tell Teynor he took three Soma pills that day, that amount was within the recommended dose. His prescription called for two pills a day, and Soma is often prescribed to be "taken as needed."

Instead of honestly examining Fowler's harassment claims, raised in an April 2005 letter to administrators, they intensified the pressure by giving him his first negative performance evaluation in 20 years, the judge concluded in his rulings. Officials used new criteria to justify putting Fowler on a performance improvement plan.

"Westminster's treatment of Mr. Fowler after his complaint culminated in his termination," the judge wrote.

bmaffly@sltrib.com

Dispose of prescription drugs Saturday

Across Utah, disposal sites will accept expired or unneeded prescription drugs between 10 a.m. and 2 p.m. on Saturday, the 5th annual National Prescription Drug Take Back Day.

Law enforcement personnel and prevention specialists will be available to answer questions and talk about concerns. Utahns can find a disposal site by going to http://www.useonlyasdirected.org or calling toll-free 1-800-456-7707.

A new public service announcement is promoting the event. In Utah, more deaths are caused by prescription drug abuse than by automobile accidents.

"By safely disposing your expired prescription drugs this Saturday, you and your family can help fight drug abuse in Utah," Gov. Gary R. Herbert said in a statement.

Utah sites are sponsored by the U.S. Department of Justice Drug Enforcement Administration, the Utah Pharmaceutical Drug Crime Project and local law enforcement agencies.