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Discrimination case against Fairpoint moves one step closer to trial

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.

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