Maine Employment Lawyer Blog

On November 21, 2009 the federal Genetic Information Non-Discrimination Act (GINA) became effective. Under this new law, subject to a handful of exceptions, employers may not gather genetic information about their employees. Genetic information includes an employee's family medical history. The law also forbids employers from discriminating against employees on the basis of their genetic information. For instance, under GINA, an employer could not fire someone because he has a family history of mental illness.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that will enforce GINA. However, before contacting the EEOC with a complaint about a violation of GINA, you should consult with an attorney experienced in representing employees.

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%".

On the basis of this evidence, the Maine Human Rights Commission Investigator's Report concluded that there were reasonable grounds to believe that the employers had committed unlawful disability discrimination that violated the state Maine Human Rights Act ("MHRA") and federal Americans with Disabilities Act ("ADA").

The respondents also argued that New England Vending, Inc. was not Ms. Vannah's employer and rather was leasing her and other employees from World Wide Personnel of Maine, Inc. and that Ms. Vannah had not named World Wide Personnel soon enough in the investigation process. The investigator concluded that New England Vending and World Wide Personnel of Maine were an "integrated enterprise" subject to joint liability because they had an interrelation of operations, common management, and centralized control of labor relations and so both were liable and appropriately named defendants. The investigation also concluded that TRSG, Inc. was a successor in interest to World Wide Personnel of Maine and so also liable for any disability discrimination.

This case highlights the scope of the new Maine Human Rights Act that includes in its definition of disability all "acquired brain injuries" which include brain injuries resulting from strokes and accidents. Therefore, any employee in Maine who has an "acquired brain injury" is entitled to the protections of the Maine Human Rights Act, cannot be discriminated against on the basis of their brain injury, and must be provided with reasonable accommodations for their brain injury. The investigation also confirmed that in a circumstance where an employer tells an employee that they cannot return to work until they are "100%" that this amounts to a constructive discharge of the employee even if the employee is not formally terminated. Ms. Vannah is represented by Peter L. Thompson and Chad T. Hansen from Peter Thompson & Associates.

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 .

The Court's August 27, 2009 decision holds that a jury could conclude, based on the evidence in the record, that Verizon violated Ms. Adams' rights under the Maine Human Rights Act. Because Ms. Adams required more than twelve weeks of leave, she was not eligible for protection under the Family Medical Leave Act but the Court concluded that the Maine Human Rights Act provides for leave greater than twelve weeks for a disability covered by the Act if the amount of leave is determined to be reasonable under the circumstances. The Defendant is not alleging that leave from April 2007 through November 2007 was unreasonable to the extent it was medically necessary. The Court also concluded that a jury could conclude that the supervisor's failure to allow Ms. Adams to return to work part time was an illegal failure to accommodate Ms. Adams' disability and that the evidence supported Ms. Adams' claims that Verizon terminated her because of her disability and in retaliation for requesting and needing the reasonable accommodation of leave for her disability. The Court dismissed Fairpoint's technical arguments that Ms. Adams' claims were preempted by the Employee Income Retirement Security Act ("ERISA") and the Labor Management Relations Act ("LMRA").

In addition, the Court ruled against Fairpoint's motion to exclude Ms. Adams' primary care providers as experts. The Court's order indicated that Ms. Adams had been treated primarily by a Physician's Assistant and Nurse Practitioner rather than a Physician. Fairpoint argued that these professionals were not sufficiently qualified to provide expert testimony about Ms. Adams' medical condition even though they were qualified to provide her care for these conditions. The Court found Fairpoint's arguments unpersuasive, citing to another District of Maine case, Akerson v. Falcon Transportation Company 2006 WL 3377940 (D.Me. 2006) for the proposition that, "there is nothing inherently unreliable or unacceptable about letting a nurse practitioner or physician's assistant articulate and discuss psychiatric conditions that they encounter and treat in the course of their regular practice." At a time when more and more patients receive their primary care from physician's extenders like nurse practitioners and physician's assistants, this decision confirms that patients in Maine will not be disadvantaged if and when they need their primary care provider to render an opinion in court on their behalf.

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.

After he spoke to Ms. Sensing about this medical exam, the supervisor never found a doctor like he said he would and he never called Ms. Sensing back. The supervisor claims that he just assumed that Ms. Sensing abandoned her job because she did not call him. Ms. Sensing consulted a lawyer who wrote a letter to the company. The letter asked Outback to allow Ms. Sensing to return to her takeaway position. The company did not respond.

The First Circuit ruled that, under these facts, even though no one at Outback told Ms. Sensing she was terminated, a jury could conclude that Outback terminated Ms. Sensing's employment. I find this interesting because, in most cases, the employer either clearly terminates an employee or the employee clearly resigns. Sometimes, like in this case, it is not so clear whether the employee resigned or her employer terminated her. In those cases, the First Circuit has determined that a jury must decide whether there was a termination or a resignation. That decision can have serious consequences because, unless there are some very compelling reasons for the resignation, an employee who voluntarily resigns cannot prevail on a claim against her employer for the loss of her job.