Articles Posted in Disability discrimination

On October 1, 2009 the Maine Human Rights Commission concluded an investigation which found that there were reasonable grounds to believe that an employee, April Vannah, was terminated from her job because of her disability by her employers New England Vending, Inc., World Wide Personnel Services, of Maine, Inc. and TRSG, Inc.

The Investigator’s Report indicates that Ms. Vannah had worked for these employers since 2005 as a cook and then manager at a cafeteria operated in a Lewiston Wal-Mart distribution center. In March 2007, Ms. Vannah suffered a severe stroke which adversely affected her speech and ability to use her arm. Ms. Vannah began a long rehabilitation that has assisted her to regain her ability to speak and use her arm. After some rehabilitation, Ms. Vannah returned to work. She was given fewer hours than she had worked before and was not allowed to be a manager. On February 19, 2008, an accident occurred that resulted in cooking oil being spilled on the floor of the kitchen. Ms. Vannah denied being involved in the accident. Nonetheless, her employer told Ms. Vannah that the accident was her fault and told her that she was terminated and could only return when she was 100%. A supervisor then completed a termination form which indicated that the reason for Ms. Vannah’s separation was “medical” reasons. Ms. Vannah argued and the Maine Human Rights Commission agreed that the statement by the supervisor made it clear that they were holding Ms. Vannah’s disability against her and that the employers’ actions amounted to a termination because of her disability.

The employers later denied that Ms. Vannah’s brain injury had anything to do with her separation and instead claimed that Ms. Vannah was a bad employee who misbehaved and had engaged in unsafe behavior and that these were the reasons for her separation. The employers also argued that Ms. Vannah had left voluntarily. The investigator’s report points out that the employers had failed to provide any documentation, specific information, or other evidence to show that Ms. Vannah had misbehaved or engaged in “unsafe behavior”. The investigator also pointed to the fact that at the time of the oil spill that employers’ supervisor had told Ms. Vannah that she was done working until she was “100%”.

Magistrate Judge Margaret Kravchuk of the United States District Court for the District of Maine has issued a recommended decision denying Fairpoint Communications’ Motion for Summary Judgment and Motion to Exclude the treatment providers of Plaintiff Cathleen Adams from testifying as experts at trial. This brings the case one step closer to being heard by a jury at the United States District Court for Bangor, Maine.

The Court order sets out that Plaintiff Cathleen Adams worked for Verizon and its predecessors for over 21 years, most recently as an administrative assistant. There was no dispute that Ms. Adams performed her job well. In the last few years of her employment with Verizon, Ms. Adams required leave from work on a number of occasions due to her own medical conditions and to care for sick family members. In April 2007, Ms. Adams again required medical leave due to her major depression and anxiety. Ms. Adams’ supervisor was angry about her need for leave and called her short term disability carrier to state that he felt she was defrauding the company, did not need medical leave, and was instead running a puppy breeding business from her home with on leave. These claims by Ms. Adams’ supervisor were false and were not based on any real evidence. It is undisputed that her supervisor never reviewed her medical records or spoke with her primary care providers who could have provided documentation and information supporting Ms. Adams’ need for leave. Ms. Adams’ short term disability carrier approved Ms. Adams’ request for short term disability benefits. In September 2007, her primary care provider released her to return to work on a part time basis. Ms. Adams’ supervisor refused the request, stating to the disability carrier that he thought Ms. Adams’ attempt to return to work part time was just part of a big game she was playing. After refusing Ms. Adams’ request to return to work part time, her supervisor ordered surveillance of her at her home. Unsurprisingly, the surveillance showed her performing activities around the house and riding her motorcycle around on short rides as she waited for her employer to allow her to return to work part time or her nurse practitioner to allow her to return to work full time. Ms. Adams’ supervisor then advocated for Ms. Adams’ termination based on the results of the investigation. He failed to mention to the company’s investigator or the manager authorizing Ms. Adams’ termination that Ms. Adams had requested to return to work part time weeks before he initiated the surveillance. Ms. Adams did return to work full time in November 2007 and performed her job well until January 3, 2008 when she was terminated in connection with her prior use of leave.

As the successor in interest, Fairpoint is now the responsible party even though Ms. Adams was terminated prior to Fairpoint’s acquisition of Verizon’s assets in Maine . Cathleen Adams’ attorneys, Peter L. Thompson and Chad T. Hansen, filed suit in federal court against Fairpoint Communications in September 2008 alleging that Fairpoint’s predecessor in interest, Verizon, violations Ms. Adams’ rights under the Maine Human Rights Act when it failed to accommodate her disability and terminated her employment on January 3, 2008 .

On August 11, 2009, in Sensing v. Outback Steakhouse, the First Circuit Court of Appeals in Boston ruled against Outback Steakhouse in a disability discrimination case. (The First Circuit Court of Appeals is a federal appeals court that hears cases from Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico).

The woman who brought the case against Outback, Suzanna Sensing, had diabetes and multiple sclerosis (MS). She claimed that her supervisor terminated her because of her disabilities. Even though she had clearance from her doctor to work, Ms. Sensing’s supervisor believed that she was too much of a “liability” to the company.

As an employment lawyer who represents employees in cases where employers terminate my clients, I found the portion of the decision about the end of Ms. Sensing’s employment interesting. This is how her employment ended: Ms. Sensing’s supervisor told her that the company wanted her to undergo a medical exam to determine if she could perform her job safely. He told her that, while they waited for the results of the medical exam, she “might” be able to work light-duty at half her normal pay rate and for one-third the number of hours she normally worked. In response to this proposal, Ms. Sensing told her supervisor that she did not know if, financially, she could take such a drastic cut in pay while she waited for the results of the medical exam. She said that she wanted to talk about it with her husband. The supervisor said that while she considered the proposal he would look for a doctor to perform the medical exam and then get back to her.