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Maine Human Rights Commission Investigation Finds Employer Discriminated Against Employee With Brain Injury

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.

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