Maine Employment Lawyer Blog

James White, a former HIV+ employee of Great Expressions Dental, claims that he faced discrimination and harassment after the company learned of his disability. He alleges that, among other things, the company permitted co-workers to follow him around with Lysol, forbade him from touching doorknobs, unfairly disciplined him, and terminated his employment because of his HIV+ status. According to Mr. White's representatives, Detroit Legal Services, the U.S. Equal Employment Opportunity Commission (EEOC) has issued Mr. White a letter which states that its investigation corroborated his allegations against Great Expressions Dental.

Great Expressions Dental has now taken the unusual step of suing Mr. White and his supporters over the allegations. It sued Mr. White seeking a declaratory judgment which will dismiss his case. It sued some of Mr. White's supporters because they posted petitions online which the company claims contain false accusations. Detroit Legal Services' President said in response to the company's lawsuits, "we are outraged by the further, relentless discrimination and bullying toward an individual who has been traumatized more than anyone should ever be."

It is a violation of federal and Maine state law for an employer to discriminate against or harass an employee because he has a disability such as HIV. As this case demonstrates, even if the EEOC finds in your favor, many employers will fight tooth and nail to defend themselves against allegations of discrimination and harassment. So, if you've experienced disability discrimination or harassment at work, you should seek the advice of an experienced employment attorney.

The former CFO for Proskauer Rose, a large law firm in New York, has sued it for disability discrimination. The former CFO, Elly Rosenthal, claims that the law firm demoted her and then fired her because she had breast cancer that required her to take medical leave. Ms. Rosenthal, who had served as the firm's CFO since 1992, took several weeks of medical leave in 2008 while she underwent two surgeries to treat her cancer. According to Ms. Rosenthal, some in the law firm were supportive of her but others were not. So, when she was fired she felt "blindsided." "I don't know how we went from 'Elly, get well and there will always be a place for you' to 'By the way, be out of here in three days,'" said Ms. Rosenthal.

Interestingly, a large part of Proskauer Rose's business involves defending employers from employment discrimination lawsuits. Now, it has to defend itself.

If her allegations are true, Ms. Rosenthal is certainly not the first person to need medical leave from work to fight a life threatening disease and then lose her job because of it. The Maine Employee Rights Group has represented employees who have faced similar circumstances. If your employer is discriminating against you because you need to take medical leave due to a serious illness or disability, you should contact the Maine Employee Rights Group to learn about your rights.

On July 6, 2011, the United States District Court of Maine in Bangor issued a decision that permits a disability discrimination lawsuit against Bath Iron Works (BIW) to go forward. A former employee of BIW, Guillermo Blanco, brought the lawsuit against BIW (which is owned by General Dynamics Corporation).

The lawsuit alleges that BIW's doctor violated the Americans with Disabilities Act (ADA), and a similar Maine law, when he shared Mr. Blanco's confidential medical information with BIW management. BIW fired Mr. Blanco because of the information the doctor provided to management. BIW said it fired Mr. Blanco because it thought he lied about the fact that he had Attention Deficit Hyperactivity Disorder (ADHD) in a medical questionnaire. Mr. Blanco said he didn't lie; he said he didn't think the questionnaire asked about mental health issues. The Court said it didn't matter whether he lied or not. The ADA forbids company doctors from sharing confidential medical information with management except in limited circumstances not present in this case. When the doctor told management that Mr. Blanco had ADHD, a violation of the ADA occurred. BIW will be held responsible for the violation if Mr. Blanco presents evidence to support his allegations because BIW's doctor made the unlawful disclosure and its managers acted on the information.

According to the Equal Employment Opportunity Commission, the federal agency that enforces the ADA, "[h]istorically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities--particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness--despite their ability to perform the job." The ADA's medical confidentiality requirements are important safeguards against discrimination because it is so easy for a manager to come up with a false excuse to fire an employee because he has a disability. By preventing managers from learning of employees' disabilities, it prevents this type of discrimination.

The Maine Employee Rights Group is representing Mr. Blanco in this case.

The Maine Human Rights Commission (MHRC) has found reasonable grounds to believe that Tamco Transportation, headquartered in Presque Isle, discriminated against Peter Freeman because of his bipolar disorder.

Mr. Freeman worked for Tamco as a truck driver. When Mr. Freeman told the owner of Tamco that he had bipolar disorder, he said "that explains a lot." When Tamco later terminated Mr. Freeman, the owner told him that he needed to lay him off due to a lack of work. However, when Mr. Freeman filed for unemployment compensation, the owner changed his reason for the termination. He told the Bureau of Unemployment Compensation that he actually terminated Mr. Freeman, in part, because he "appears to be bipolar." Tamco's owner continued to change his reasoning for the termination during the MHRC's investigation. At one point, he told the MHRC that he terminated Mr. Freeman, in part, because he was in an accident with his truck. He later admitted that the accident was not Mr. Freeman's fault and that he did not consider the accident when he terminated him. Tamco's claim that it had to lay off Mr. Freeman due to a lack of work also did not make sense to the MHRC because Tamco hired another truck driver just a couple days after it terminated Mr. Freeman.

Chad Hansen of the Maine Employee Rights Group represents Mr. Freeman.

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) finalized new regulations for the Americans with Disabilities Act (ADA). Congress revamped the ADA in 2008. The president signed the revamped version into law in January 2009. The EEOC's new regulations provide guidance to employers, employees, and courts on how to interpret certain portions of the new ADA.

Before Congress revamped the ADA, employers had successfully convinced the courts to interpret the ADA in a very restrictive way. Under this restrictive interpretation of the ADA, employers could discriminate against employees because they had conditions like cancer, multiple sclerosis, and bipolar disorder. The courts allowed these employers to discriminate against employees suffering from conditions like these under the rationale that these conditions were not disabilities under the ADA. For instance, courts held that some people with bipolar disorder did not have a disability because medication controlled their symptoms. Accordingly, courts permitted employers to fire someone merely because he had bipolar disorder that was controlled by medication.

Under the revamped ADA and the new regulations, people who seem to intuitively fit the definition of a person with a disability will now receive protection from discrimination that they did not enjoy under the old ADA. For instance, under the new regulations, there is a list of conditions like cancer, multiple sclerosis, and bipolar disorder which should "easily" meet the new definition of disability.

The Maine Human Rights Act (MHRA) also prohibits discrimination against employees with disabilities. The MHRA is similar to the ADA in some respects but also different in some respects. If an employer has discriminated against you because of a health condition, you should contact an experienced employment lawyer to learn about your rights under both the ADA and MHRA.

On January 24, 2011, the Maine Human Rights Commission (MHRC) unanimously found that there were reasonable grounds to believe that Dudley's Diner discriminated against Kelly Chipman because of her vision problems. The Diner, located in Belfast, Maine, fired Ms. Chipman on March 5, 2009 because of her vision problems. Dudley's Diner argued that Ms. Chipman's vision problems made her unsafe to carry coffee and other hot beverages. The MHRC found that Dudley's Diner made this decision based on unproven assumptions about Ms. Chipman's disability. Under the Maine Human Rights Act, an employer must perform an individualized assessment of a person with a disability to determine if she is actually unable to perform her job safely before it can terminate her for safety reasons.

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to implement the Genetic Information Non-Discrimination Act (GINA). According to the EEOC, "Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information." Under GINA, employers may not treat employees differently because of such things as genetic test results and family medical history. For instance, an employer cannot refuse to insure an employee because that employee has a family history of heart disease. In a press release, the EEOC stated that "[t]he final regulations provide examples of genetic tests; more fully explain GINA's prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites."

If you believe that your employer has discriminated against you because of your genetic information, you should call an experienced employment lawyer to learn more about your rights.

On November 1, 2010, the Maine Human Rights Commission (MHRC) found that Central City Sheet Metal, Inc. discriminated against Patrick Michaud because of his disability when it terminated his employment. Central City Sheet Metal terminated Mr. Michaud on November 25, 2008. Prior to his termination, Mr. Michaud had worked for the company seven years as a foreman.

Mr. Michaud has heart problems, diabetes, and pinched nerves in his left hand. He worked through these health issues but he needed accommodations from his employer to do so. One of these accommodations was a 30 pound lifting restriction that Mr. Michaud's doctor imposed on him in January of 2008.

On November 20, 2008, less than a week before his termination, Mr. Michaud claims that he informed his supervisor that he would need to undergo surgery on his hand in the near future. At that time, he was also still working under the 30 pound lifting restriction that his doctor had imposed in January 2008.

On November 25, 2008, Mr. Michaud claims his supervisor asked him to put supplies on top of a trailer in an unsafe manner. According to the MHRC, Mr. Michaud actually would have violated OSHA safety standards if he had done what his supervisor requested. Citing safety concerns, Mr. Michaud claims he told his supervisor that he wanted to perform the task in a different, safer way. Mr. Michaud says that, in addition to his safety concerns, he told his supervisor that he would violate his lifting restriction if he performed the task in the way the supervisor wanted. After Mr. Michaud raised these concerns, his supervisor told him to "go the f--k home."

Mr. Michaud assumed that his supervisor terminated him when he told him to go home. Central City Sheet Metal claims that it did not terminate Mr. Michaud until the next day when he did not show up for work. In any event, there is no dispute that Central City Sheet Metal terminated Mr. Michaud's employment.

The MHRC found that, but for his disabilities and need for accommodations, Central City Sheet Metal would not have terminated Mr. Michaud. In reaching this decision, the MHRC Investigator found that the supervisor was frustrated over the fact that the company had to accommodate Mr. Michaud's disabilities. She also found it noteworthy that the supervisor terminated a long term employee without following the disciplinary steps set forth in the company's own policies.

Now that the MHRC has found reasonable grounds to believe that Central City Sheet Metal discriminated against Mr. Michaud because of his disabilities, the MHRC will likely engage in conciliation efforts with the company in an attempt to resolve Mr. Michaud's complaint. If those conciliation efforts fail, the MHRC and/or Mr. Michaud could file a lawsuit against Central City Sheet Metal.

On October 20, 2010 the Equal Employment Opportunity Commission (EEOC) held a public meeting to hear testimony about the way employers use credit history checks to screen job applicants. Some believe that credit checks have a disparate impact on minorities, women and the disabled. Opponents of the use of credit checks also pointed out at the meeting that credit checks create a "Catch-22" for the unemployed. "You can't re-establish your credit if you can't get a job, and you can't get a job if you've got bad credit," said Chi Chi Wu of the National Consumer Law Center. Witnesses who testified on behalf of employers emphasized that credit checks are just one "piece of the puzzle" that employers look at when they make hiring decisions.

In a federal lawsuit, the former Town Manager of Stonington, Maine, Howard Willingham, claims that the Town discriminated against him on the basis of his disability. The Town filed a motion that asked the court to dismiss the case. The Town argued that Mr. Willingham did not file his lawsuit within the statute of limitations set forth in a right-to-sue letter that he received from the U.S. Equal Employment Opportunity Commission. The court rejected the Town's argument and permitted the case to go forward. The court held that a different, longer statute of limitations applied to Mr. Willingham's claims.

Many employee rights statutes have different statutes of limitation. If you believe your rights may have been violated, you should contact an experienced employment lawyer immediately to make sure that you do not miss your opportunity to bring a claim.

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.