Investigators Report: E07-0226

Untitled Document

INVESTIGATOR’S REPORT E07-0226

[Complainant]

[Respondent]

COMPLAINANT’S CHARGES:

The Complainant alleges that certain job duties (training, charge,

and overtime) were taken away after he returned from approved leave

taken to address a disability diagnosed as “intermittent incapacitating anxiety.”

II. RESPONDENT’S ANSWER:

The Respondent replies that the aforementioned job duties comprised only a small

portion of the Complainant’s job responsibilities and that these peripheral duties were

removed due to the Complainant’s unpredictable absences and negative attitude.

III. JUIRISDICTIONAL DATA:

1. Date of alleged discrimination: 1/11/07.

2. Date original complaint received by the Commission: 5/4/07.

3. Respondent employs approximately 3,300 individuals and is

required to abide by the non-discrimination provisions of the Maine Human Rights

Act, the Americans with Disabilities Act, and state and federal employment

regulations.

4. The investigation consisted of a review of written submissions and two Fact

Finding Conferences.

5. The Complainant is represented by the Attorney Chad Hansen. The Respondent is

represented by Attorney Anne-Marie Storey.

6. The matter was not resolved.

IV. DEVELOPMENT OF FACTS

1. (Undisputed) The Complainant was hired to work in the Respondent’s Housekeeping

Department as a weekend sanitation control attendant (garbage collector) in 1986.

He assumed the position of floor machine operator (janitor) in 1998. In 1992, the

Complainant requested a job change back to sanitation. In 1994, he was promoted to

“Special Projects” (also within the Housekeeping Department). In this position the

Complainant was responsible for special cleaning and maintenance projects, such as

floor refinishing, hard cleaning floors, carpets, and walls, moving furniture, and

washing windows. In January 2005, the Complainant received a new position within

the Housekeeping Department, “Equipment Maintenance.” The Complainant later

returned to his former position of Special Projects, effective October 2006

2. (Complainant, hereinafter “C”) I have been employed by the Respondent for over 20

years. I am qualified and able to do all aspects of my job, including, but not limited to,

equipment maintenance, training, and charge responsibilities.

3. (C) I have been diagnosed with anxiety and stress disorder. The Respondent has

approved intermittent Family Medical Leave Act (“FMLA”) leave that I have

requested due to these conditions. However, after returning from intermittent leave in

January 2007, the Respondent refused to allow me to return to some of my former job

duties, particularly training and charge, and these exclusions continue to the present.

The Respondent told me that I was not being returned to these duties because they

were concerned that the additional stress associated with these duties would not be in

my best interest and that they did not want to place me in a problematic situation.

There was no basis for my exclusion from any of these duties since my medical

providers have provided the Respondent with multiple notes indicating that I could

return to performing all of the job duties I was assigned prior to going out on leave.

4. (C) The Respondent also excluded me from my equipment maintenance duties. Since

my return from leave in January 2007, the Respondent has also demoted me to a lower

pay grade and frozen my pay. As a result of these and other aforementioned actions

taken by the Respondent, I missed out on overtime and have been unable to obtain

overtime to which I am entitled.

5. (C) I believe that the Respondent has taken each of these adverse actions because they

regard me as a person with a mental disability. I also believe that the Respondent has

taken these actions in order to harass and retaliate against me for requesting and using

FMLA leave.

6. (Respondent, hereinafter “R’) The Respondent vigorously denies that the

Complainant’s allegation that he was regarded as an individual with a disability or that

adverse employment action was taken against him on that basis. Although the

Complainant did use intermittent FMLA leave at various times during his years of

employment (for what the Complainant referred to “anxiety”), however, the

Respondent never treated him any differently or negatively because of it. While the

Complainant did receive various warnings over the years for missed time and

tardiness, he also received positive performance reviews and at least one promotion.

7. (R) Almost since his hire, the Complainant has had problems with excessive tardiness

and absenteeism, as well as his attitude and ability to get along with his supervisors.

His March 1988 evaluation, as well as his August 1988 and August 1989 reviews, all

noted unscheduled absences and tardiness, and the Complainant was counseled on the

need to improve in these areas. Because the problems did not improve, in 1989 the

Complainant received a written warning about excessive absenteeism and was denied

a merit increase on that basis. He was denied a merit increase in 1990 for the same

reason. Attendance was again noted to be an issue in his 1991 review. The

Complainant received a written warning for excessive tardiness in 1992. The

Complainant attributed his absences to illness, which he alleged only flared up when it

was time to go to work in the morning. His 1992 performance evaluation noted a total

of 15 unscheduled absences and the Complainant was again given a “needs

improvement” rating. The following month, the Complainant requested (and received)

a job change back to sanitation control, and once he did so, his performance improved,

as noted in his 1992 and 1993 reviews. Based upon this improved performance, the

Complainant was promoted to “Special Projects” (in Housekeeping) in 1994. Between

1994 and 2001, the Complainant had good attendance and favorable performance

evaluations, and regular raises.

8. (R) Problems with tardiness and performance began again in 2001 and that year’s

evaluation noted issues with tardiness and leaving work early unscheduled. The review

also stated that his behavior sometimes resulted in strained relationships with his co-

workers. In October 2001, the Complainant received a written oral warning for six

instances of tardiness in August and September. The July 2002 review also noted

tardiness to be an issue. Another written oral warning was given to him in February

2003 for nine instances of tardiness between 1/7/03 and 2/6/03. When a meeting was

held to address this warning the Complainant blamed his tardiness on frozen pipes at

his home. The Complainant became so upset during the conversation that he needed to

go to the emergency room, although he returned to the department later that afternoon.

In May 2003, after a supervisor confronted the Complainant about sitting down on the

job, the Complainant again became so upset during a meeting about the incident the

following day, that he again had to go the emergency room. Later that month, the

Complainant appeared to resign his position when he put his pager on the table, along

with his name tag and said “I quit.” However, during a subsequent meeting involving

HR, the Complainant claimed that he was only “quitting” the conversation he was

involved in, not quitting his job. Although it seemed clear that he had resigned, the

Respondent agreed not to treat his actions as a resignation. The Complainant was told

that he needed to remain professional during meetings when he was questioned or

counseled. The Complainant June 2003 performance appraisal again noted attendance

and tardiness but noted he had made some improvement. However, in June 2004, he

again received a verbal warning for six unscheduled absences between March and June.

9. (R) In August 2004, the Complainant requested FMLA leave because his home was

under foreclosure, but that reason did not qualify for FMLA leave so it was denied. In

October 2004, the Complainant was given a written warning relating to six

unscheduled absences that had occurred between July and October.

10. (R) Despite the Complainant’s issues with attendance and tardiness, in January 2005,

the Complainant was given a new position of Equipment Maintenance (within the

Housekeeping Department). This was deemed to be a promotion. He was given this

position because it would require less interaction with other employees and he could

control his own activities to a larger degree. In this job, the Complainant was

responsible for mechanical maintenance of the Hospital’s cleaning equipment. He

was also asked to cover charge duties every third weekend, as there was no one else

available to do so. Charge involved checking staff in and out when they arrive and

leave for the day, directing their activities, responding to calls and reassigning work

when necessary. The Complainant appeared to be performing the work assigned to

him well and his performance appraisal from July 2005 reflected this, as well as some

improvement in attendance.

11. (R) In this new position, the Complainant worked overtime as he chose to and, when

he did, it would overlap with the second shift of housekeeping employees. In May

2006, the Complainant claimed that a second shift employee tried to hit him on the

head with a broom handle but later changed his story and said the other employee

only acted abruptly because he was upset that the Complainant had walked across a

floor that had just been stripped. . During a meeting addressing that issue, the

Complainant complained of high blood pressure, which he related to work and home

stress. The Complainant did not ask for any time off or any type of accommodation.

12. (R) On 6/13/06, the Complainant requested a leave of absence for what he referred to

as “anxiety nervous condition.” The medical certification submitted from his

physician described the

condition as “intermittent incapacitating anxiety,” which commenced in February

1999 and was of indefinite duration. The Complainant was permitted to use

intermittent FMLA leave as requested, beginning on 5/28/06. His July 2006

performance evaluation was generally positive but again noted improvement needed

with attendance and tardiness, among other things.

13. (R) During that same summer, a new housekeeping manager, Ms. YE, was hired. It

quickly came to Ms. YE’s attention that although the Complainant was the paid to

maintain the hospital’s cleaning equipment, he was not actually doing so. Instead, he

was contracting with an outside entity to do the maintenance. Since this was the work

the Complainant was supposed to be doing, the Respondent was really paying twice

to have the maintenance work done. When Ms. YE spoke to the Complainant about

this issue, he responded by saying that no one had trained him to do the equipment

maintenance, despite the fact that he had been in this job since January 2005 and he

never brought this fact to anyone’s attention. The Complainant also reported that the

maintenance work he was doing was taking only 10-15 hours of his 40 hour week,

with the remainder of his time devoted to Special Projects work. It was during this

meeting that the Complainant requested to go back to just to Special Projects work.

14. (R) From July through September 2006, the Complainant and Ms. YE discussed a

return to Special Projects and what the Complainant might do instead of equipment

maintenance. The Complainant also expressed an interest in being a trainer for new

employees in housekeeping regarding Special Projects. In September, the

Complainant was told he could move back to Special Projects and do some training.

15. (R) This change in job duties was effective as of October 2006 and it was agreed that

the Complainant would continue periodic charge responsibilities. However, both the

training and charge duties were always secondary to the Complainant’s primary

responsibilities in Special Projects.

16. (R) In his prior position in Equipment Maintenance, the Complainant had access to a

room for performing maintenance and service work. Since he was performing little if

any of that actual work, the Complainant used this room as his personal space and

appropriated furniture for it from other areas of the hospital. Since he was later given

the position of Special Projects and another employee was taking over the Equipment

Maintenance duties, the Complainant was asked to move his personal belongings out

of the Equipment Maintenance room in September 2006. Despite being asked to do so

on several occasions, the Complainant refused to comply, as well as refusing to return

the key to the room, which forced the Respondent to change the lock to the room. He

also initially refused to return his Equipment Maintenance name tag. This was all

despite the fact that it was the Complainant who asked for a change in his job duties

and was given the precise work (Special Projects) he asked for. After being asked to

move his belongings out of the Equipment Maintenance room, he then asked for

another office, with a computer and a telephone. However, his request was denied

because of lack of office space and because his new position did not require him to

have an office to perform his job duties. Even the Complainant’s supervisors did not

have their own offices. The Complainant was also told that if he did need access to a

computer, he could use the ones the hospital made available for traveling employees.

17. (R) In the meantime, the Complainant received a .50 per hour raise (as did other

employees). He (and another employee) had coaching on 10/5/06 for smoking during

a non-break period. On 10/11/06, the Complainant was given a verbal reprimand for

taking an additional break in the morning, and in response, he stated that he was not

going to work charge anymore. This developed into a pattern. Although he claimed to

like charge responsibilities, he would often threaten not to come in because he knew

it would place the Respondent in a difficult situation. The Complainant would then

either reconsider his threat not to come in or assign someone else to take over his

charge duties for that weekend.

18. (R) On 10/24/06, the Complainant left a note on the door of the Equipment

Maintenance office for Mr. SE, the person who took over the Complainant’s former

position. The note said that the Complainant wanted to retake the Equipment

Maintenance position, even though Mr. SE was not a supervisor and had no say in

this. Mr. SE therefore passed on the note to the Complainant’s supervisor, Ms. YE.

The Complainant also continued in his threats not to show up for charge weekends.

A meeting between him and his supervisors was held on 10/30/06 to discuss his

actions and new job responsibilities. The Complainant complained that he had issues

with the second shift supervisor, Mr. LE, to whom the Complainant did not believe he

should have to be accountable when he worked overtime on the second shift. The

Complainant was advised that he needed to keep a positive attitude, particularly when

working charge or as a trainer of new employees. The Respondent had learned that

the Complainant was telling others not to trust Ms. YE (and other supervisors in the

department) and to not to as they were told. This was inappropriate behavior from an

employee performing charge and training duties. Ultimately, the Complainant agreed

to continue in Special Projects, with occasional charge and training duties. A new

outline of his job responsibilities was prepared, delineating that, especially when

working as charge or as a trainer, he needed to act as a role model to other

housekeeping employees.

19. (R) By early November, the Complainant had still not removed his personal

belongings from the Equipment Maintenance room, so the person who had taken over

that position (and room), Mr. SE, put the Complainant’s property in a cart and took

them to the supervisor’s office to keep safe. When the Complainant learned this had

been done, he announced that he was going to take FMLA leave, although he instead

decided (after a short time) to continue working. In mid November, the room issue

arose again because the Complainant wanted a place to put a coffee pot. It was

explained to him that the Equipment Maintenance room could not be used for that

purpose because of the presence of certain chemicals in the room, as well because the

plug on his coffee pot was not grounded. The Complainant would not let the issue go

and raised it repeatedly and incessantly with his supervisors, Ms. YE and Mr. OK.

20. (R) On 12/8/06, the Complainant filed a request for a Leave of Absence. The

requested starting date was 1/1/07, with an ending date given as 12/31/07. The

request was made for intermittent FMLA leave on the basis of a serious health

condition. On 12/15/06, the Complainant produced medical certification requested

which stated, “intermittent incapacitating anxiety” of indefinite duration. The

Complainant’s request for intermittent FMLA time was approved.

21. (R) On 12/20/06, the Complainant had a meeting with his supervisor, Ms. YE, her

supervisor, Mr. FJ, and the Respondent’s Director of Employee Relations, Mr. NI.

During that meeting, the Complainant stated that he did not think that he was listened

to or respected by his supervisors. He said that he felt as though he had been demoted

because he no longer had an office. The office issue was again explained to him. The

Complainant also complained of stress, which he related to the holidays and being

behind on his mortgage payments. He was made aware of the Respondent’s EAP

program. He did not ask for any form of accommodation at that time.

22. (R) The Complainant was out on intermittent FMLA leave between December 26 th

and 28 th, and then showed up (without any advanced notice) on December 29 th and

wanted to work. However, he was not permitted to clock in because Friday was his

regular day off and the schedule was already set for that day. The Complainant

became upset and agitated. He was taken out of work by his physician for several

days and returned to work on January 3 rd, although he did not produce any return to

work note from his physician at that time. The Complainant met with the

Respondent’s Director of Employee Relations, Mr. NI, who asked the Complainant if

he needed or wanted some additional time off from work. The Complainant indicated

that he did and he remained out of work until January 9 th.

23. (R) In the meantime, on January 5 th, Mr. NI was informed by a hospital administrator

that the Complainant had told her that he (Complainant) told his brother to come take

the guns out of his home. Mr. NI shared this information with the Complainant’s

supervisor, Ms. YE, and her supervisor, Mr. FJ. These individuals were concerned

about the Complainant’s return to the hospital and whether he was a threat to himself

or others. They determined that the Complainant’s peripheral duties of charge and

training should be removed so that he could concentrate on his primary job, Special

Projects, until the Respondent could obtain clarification from the Complainant’s

physician. This was not a radical change in his job duties because, up to that point, he

had only trained one person, and only he worked charge every third weekend.

24. (R) Following the January 8 th meeting, Mr. NI asked the Complainant to obtain from

his physician additional clarification whether his return to work was with any

restrictions on his ability to work, whether his condition was alleged to be work

related, and whether he was safe for himself or others if he did return. On or about

January 10 th, the Complainant produced a note from his doctor indicating that the

Complainant was being treated for medication management and that he was safe to

return to work on 1/11/07, without any restrictions. The Complainant had a meeting

with his supervisors, Ms. YE and Mr. OK, as well as Mr. NI, and the Complainant

asked about returning to charge and training duties. However, the original return to

work note from the doctor did not indicate whether he knew about the guns being

removed from the Complainant’s home, or the specific responsibilities of his job

when in charge or engaged in training. For that reason, Mr. NI told the Complainant

that, while he could return to work on Special Projects, the Respondent would delay

returning him to charge or training duties until the issue could be further clarified.

Although the Complainant said that he did not find these ancillary duties stressful,

Ms. YE pointed out that the Complainant had not been performing these duties with

any regularity anyway due to his leave schedule. Ms. YE also offered to let the

Complainant to begin his shift at noon, since he often missed time when he was late

for work in the morning, but this suggestion was rejected by the Complainant because

many years earlier he had his shift changed to a later time and it was a punishment.

25. (R) On 1/22/07, the Complainant produced a note from his doctor (dated 1/18/07)

which indicated that the Complainant was still under medication management and

that it would be best to address future work issues with the Complainant on a one-on-

one basis because “…he has strong stress response to situations where he needs to

regard input from a group of people all at once.” However, the Complainant

immediately contradicted his own doctor’s instruction by requesting a group meeting

with Mr. NI, Ms. YE and Mr. FJ. The meeting took place on 1/24/07. During the

meeting the Complainant again wanted to rehash prior complaints such as the coffee

pot issue, as well as stating again that he could perform his charge and training duties.

However, the fact that the Complainant had disregarded his own doctor’s clear

instructions on avoiding group meetings, as well as the fact that the Complainant was

still upset about minor issues that had long been resolved, caused the Respondent

concern about whether the Complainant’s doctor had a complete picture of the

Complainant’s situation. Therefore, it was agreed that Mr. NI would seek some

additional clarification from the doctor regarding the nature of the Complainant’s

responsibilities before he was returned to charge and training duties. The Complainant

continued to perform his work in Special Projects. The following day, the

Complainant’s immediate supervisor, Mr. KO, explained to the Complainant that the

Respondent was not going to reinstate his charge and training duties at that time and

Mr. KO expressed concern about the Complainant’s well being. Mr. KO also

explained that the Complainant would need to work a weekend rotation (just like all

other housekeeping employees), but the Complainant refused, stating that if Ms. YE

thought he could not work charge on the weekends, he was not going to work a

regular shift either.

26. (R) In January, it also came to Mr. KO’s attention that the Complainant was not

swiping out of work when he left to attend doctor’s appointments (making it appear

he was at work when he was not actually there), so on 1/31/07, Mr. KO asked the

Complainant to provide him with specifics as to the dates and time he left for

appointments between January 9 th and January 29 th. Also on 1/31/07, Mr. NO wrote

to the Complainant’s doctor and included a job description so that he could

specifically address the Complainant’s ability to perform the training and charge

duties, in addition to the Special Projects work. While awaiting a response, the

Complainant continued to work full-time at his Special Projects position.

27. (R) By letter dated, 2/5/07, the Complainant’s doctor replied that “…there are no

duties that should be avoided at this time.” However, in the meantime, it was again

brought to Mr. NI’s attention by Ms. YE that, when the Complainant was performing

charge and training duties, she independently concluded that she did not want

him to continue doing those aspects of the job. Ms. YE informed Mr. NI that the

Complainant had been vocal to other housekeeping staff about criticizing the

administration and telling other staff not to trust her or do what they were told. For

instance, the Complainant told a co-worker who had been assigned charge duties, Mr.

NO, that he should refuse to do charge work and suggested they should stick together

against the hospital. The Complainant did this in front of other employees. As a result

of the Complainant’s attitude, Mr. NO asked not to be scheduled to work with him.

28. (R) In addition to this, the Complainant had refused direct instructions from his

supervisor on numerous occasions (such as not returning the room key or Equipment

Maintenance name tag), left for medical appointments without clocking out, he

refused to work his regularly scheduled weekend rotation (every third weekend), and

he told co-workers ahead of time that he would call in sick rather than work the

regular rotation as a project worker, and then did exactly that, attributing the leave to

FMLA. These are clearly not appropriate behaviors from someone who was supposed

to be acting as a role model for other employees. This is in addition to his prior

threats not to come in when he was working charge weekends, just to cause difficulty

for the Hospital administration. It was these actions that led both Ms. YE and Mr. NI

to conclude that the Complainant should not be returned to charge and training

responsibilities even after he had been cleared for return to these duties by his doctor..

29. (R) On 3/12/07, Ms. YE wrote to the Complainant with regard to his job classification.

Specifically, the Complainant had remained under the “Equipment Maintenance”

heading even though his job duties were changed to Special Projects (at his request)

as of October 2006. This resulted in the Complainant being paid at a higher rate than

other employees in Special Projects. The HR department requested that this be

rectified, so Mr. NI informed the Complainant that he would be reclassified under the

heading of “Special Projects.” The letter from Mr. NI also confirmed that while the

pay rate maximum for that position was below what the Complainant was currently

making, he would nevertheless be maintained at his current pay rate, although he

would not, however, be eligible for raises or bonuses until the maximum rate for the

position surpassed his current rate of pay.

30. (R) On or about 3/23/07, the Complainant produced a note from his family physician

stating that the Complainant would be out of work from March 22-March 26, and the

Complainant requested FMLA leave for that period. As of March 27 th, the leave

request was extended to April 2 nd. Both periods of leave were approved as FMLA.

31. (R) The Complainant returned to work on 4/3/07, without any call warning that he

would be 45 minutes late, so the following day he was warned that he needed to call

if he was going to be late. He was out on FMLA leave as of April 5 th. On April 9 th,

the Complainant informed his direct supervisor, Mr. KO, that he (Complainant)

wanted his charge duties back and that he was not going to work anymore weekends

until his charge duties were reinstated. During the remainder of April, the

Complainant used a combination of both intermittent as well as full days as FMLA

time. There were several occasions when the Complainant simply did not call nor call

in; it was never clear whether he would be at work on a particular day or not.

Therefore, on 4/24/07, the Complainant was given a verbal reprimand for failing to

notify his supervisor (or anyone else) when he was going to be at work and when he

needed time off. Supervisor Mr. KO had already spoke to the Complainant twice

about this same issue in April.

32. (R) On 4/25/07, based on the increased number of absences and times tardy that

month, Mr. NI sent a letter to the Complainant requesting a recertification of the need

for his intermittent leave and to inquire whether he might need full-time leave. On

4/30/07, the Complainant was given a written warning based on his failure on April

26 th and 27 th for failing to comply with the policy of calling in at least an hour prior to

missing shift. Also in April, the Complainant began attributing his absences to vertigo,

which he did not relate to his anxiety. Because this appeared to be a separate health

problem, the Complainant was requested to produce a new medical certification for

the requested leave time in March and April, which he eventually did, and his leave

was approved as FMLA leave.

33. (R) On or about 5/2/07, the Complainant produced a note from his physician stating

that he was under treatment for medication management and should take a leave of

absence until further notice. Another doctor’s note dated 5/11/.07 stated that he was

unable to work at that time and the Complainant reported (to Mr. NI) that he was not

going to be able to work again. The Complainant was provided with continuing

FMLA leave until it was used up on 6/6/07. At that time he was placed on an unpaid

administrative leave for total of 24 months, which continues today.

34. (R) In sum, the Complainant requested no accommodation aside from intermittent

FMLA leave, and those requests were always granted. Other employees in Special

Projects were similarly disciplined for some of the same issues as the Complainant:

Employee A – oral warning June 2006 for absenteeism; written warning

11/27/06 for unsatisfactory performance, including failing to follow

supervisor’s instructions and leaving assigned work area without permission;

and a suspension in January 2007 for continued unsatisfactory performance.

Employee B – oral warning 6/21/06 related to gossiping, displaying a

demeaning attitude towards co-workers, and negativity in the workplace.

Employee C – oral reprimand on 11/15/06 for failing to perform an assigned

job duty in accordance with approved standards of performance.

Employee D – oral reprimand 1/11/07 for repeated failure following supervisor’s instructions about not working the entire shift and taking unauthorized breaks.

Employee E - performance coaching worksheet on 5/11/07 for gossiping.

Employee F – coaching on 7/6/07 for not completing assigned jobs.

Employee G – coaching in November 2006 for not locking recycling totes.

35. (C) Although the Respondent produced a significant quantity of information on the

Complainant’s work history from 1986 through 2006, the Complainant generally

performed well during this period and most of this is irrelevant to the disability

discrimination that occurred in 2006-2007. The Complainant did have ongoing issue

related to his anxiety disorder from 1986 through 2006 but he was not aware that he

could take FMLA during most of this period. Therefore, absences that were due to his

disability are reflected as disciplinary/performance issues until he was aware of his

right to request and use FMLA leave for his disability related absences.

36. (C) The Complainant suffers from major depressive disorder and disabling anxiety

attacks, often accompanied by the physical symptom of vertigo, which have

periodically prevented him from performing his job. Although in the past these

periods of disabling anxiety and depression have been limited to a number of days,

since May 2007, and due to the discrimination harassment and other adverse

treatment that is the subject of this charge, the Complainant is unable to work in any

capacity and the disability is ongoing.

37. (C) The Complainant’s 2005 and 2006 evaluations, while in the position of

Equipment Maintenance, indicate that he was knowledgeable and able to perform

the duties of his position. The Complainant never told the Respondent that he was not

performing the duties of his job, or that he was contracting with an outside entity to

perform his job, or that he did not know how to do his equipment maintenance job. In

the summer of 2006, Ms. YE became the new manager of the housekeeping

department and the Respondent promised to promote the Complainant to a trainer

position and perform charge duties on some weekends. In order to perform these

duties, the Complainant was promised an office with a phone and a computer, and he

accepted this proposal because it was characterized as a promotion.

38. (C) On 10/24/06, the Complainant met with Ms. YE, Mr. NI and Mr. KO to request

clarification of his new job duties and his office. This was when the Complainant was

first told that he would not receive an office for training and he responded by asking

to remain in the Equipment Maintenance position, but this request was denied. By

10/30/06, the Respondent had still not provided the requested clarification of the new

position of project trainer and coordinator, so this was raised in another meeting.

39. (C) In late October, the Complainant was asked to remove his belongings from his

office. In early November (2006), many of his possessions were thrown away, with

the remainder placed in a cart and left in the hallway. The furniture in the office was

also removed. This was extremely upsetting to the Complainant. On 11/6/06, the draft

of the Complainant’s job description had been edited by Ms. YE to include “acting as

a role model” as one of the Complainant’s new job responsibilities.

40. (C) Over the course of November-December 2006, the Complainant performed the

duties of his new position (even without the requested clarifications about what his

duties were) and he trained multiple people during this time, as well as performing

charge duties when scheduled. The Complainant never threatened not to come in for

charge duties and only left charge shifts after speaking with the next shift change and

clearing his leaving as required by policy. The Complainant also denies telling other

employees that they should not trust Ms. YE.

41. (C) When the Complainant showed up wanting to work on 12/29/06 (after being out

on FMLA leave on 12/26-12/28), Mr. KO told him that Ms. YE had said on 12/28

that she did not care if the Complainant had been out on leave, that Friday had been

his day off in the past, and that she was not going to play favorites. The Complainant

then returned to work on 1/2/07 and had no contact with any supervisors the entire

day. The following day, the Complainant was called into a meeting with Mr. NI, who

The Complainant went out on full (as opposed to intermittent) leave on 5/2/07. He remains on administrative leave.

Retaliation based upon the request for, or use of, FMLA leave is not covered under the MHRA or the ADA.

The Complainant had been scheduled to train other employees but he was often out of work when the training was

scheduled to have been done.

This practice was referred to as “red lining,” and had been applied to other employees, including the individual

who succeeded the Complainant in the Equipment Maintenance position, Mr. NO.

Aside from the request for FMLA leave for his home foreclosure, which did not qualify under the FMLA.

told the Complainant that he (Mr. NI) and Ms. YE were concerned about the

Complainant’s condition and suggested he take more FMLA leave. The Complainant

stated that he was able to work, but Mr. NI persisted, and the Complainant eventually

agreed to call his doctor, who approved FMLA leave through 1/9/07.

42. (C) On 1/4/07, the Complainant sent a 10 page letter to the Respondent’s CEO,

outlining incidents occurring over the preceding few months, including his mental

disability, his use of FMLA time, Ms. YE’s refusal to let him work on 12/29/06, as

well as Mr. NI’s and Ms. YE’s repeated suggestions (at their 1/3/07 meeting) that the

Complainant take additional FMLA leave. No response was ever received to this

letter, although his personnel file indicates that it went directly to Ms. YE, who filed

the letter as an employee accident/incident report. Ms. YE’s notes indicate that she

met with Mr. NI (and another supervisor) and they agreed they would meet and talk

with the Complainant about his anticipated return to work date, as well as their plan

to request clearance from his doctor. Once cleared, they planned to return him to

some duties but not allow the Complainant to do training, charge duties or overtime.

The notes also indicate their intention to start holding the Complainant “accountable

for time (calling).” Therefore, prior to requesting clearance from his doctor, the

supervisors had already decided they would not let the Complainant return to certain

pre-leave duties (charge, training, and overtime) even if the doctor cleared him to

return to full duty, and they decided to start disciplining him for attendance issues.

43. (C) Although on 1/8/07, Mr. NI requested that the Complainant provide

documentation from his physician regarding 1) his restrictions 2) whether his

condition was work related and 3) whether it would be safe for him and others if he

returned to work, there was no request for information regarding the Complainant’s

ability to perform training, charge duties and overtime.

44. (C) On 1/10/07, the Complainant provided a note from his nurse practitioner that he

was safe to return to work on 1/11/07, that he had no restrictions, and that his

condition was work related. On the same day, the Complainant met with Mr. KO, Ms.

YE and he asked them when he could resume his training and charge duties, and they

responded that first he had to be “stable” and “reliable.” The Complainant made clear

that he liked these duties and performing them would make him feel better. Mr. KO

reiterated during this meeting their actions were intended to “assist” the Complainant

by not adding stress.

45. (C) On 1/25/07, the Complainant again met with Mr. KO, who said that despite the

Complainant’s expressed desire to return to training and charge duties, he needed to

focus on “getting himself health and stable,” and that keeping him away from these

other duties was out of concern for his “health and well-being.” Also, when the

Complainant was informed that Mr. KO still wanted him to work weekends, but in a

non-charge capacity, the Complainant pointed out that it did not make sense to do so.

Mr. KO also denied the Complainant’s request for personal time for doctor’s

appointments. In response to this meeting, the Complainant sent a letter to Mr. NI

stating that the Respondent was violating the FMLA by taking away these other

duties and by telling the Complainant they were “not going to tolerate” his actions

anymore, which he also alleged to be a violation of the FMLA.

46. (C) On 1/29/07, Ms. YE reviewed the Complainant’s payroll records and concluded

that he had not clocked out to go to doctor’s appointments so she docked him

personal time for these instances. On 1/31/07, Ms. YE sent an email to Mr. NI where

she wrote that she did want to return the Complainant to charge duties because “when

[Complainant] is stressed, his reaction is to give up being charge.” On that same day

Mr. NI had a conversation with the Complainant where Mr. NI indicated that they

were not trying to punish the Complainant but they just did not want to “push him

over the edge.” Mr. NI agreed at that time to write to the Complainant’s psychiatrist

asking if the Complainant could do training and charge duties. In a 1/31/07 email

documenting his conversation with the Complainant and an attorney for the

Respondent, Mr. NI noted that while management was concerned about the

Complainant’s “negative attitude” during meetings with management, he had not

exhibited this negative attitude while training or in charge.

47. (C) In response to this email, Ms. YE sent multiple angry emails alleging that the

Complainant had urged others not to accept charge duties (since he was being denied

it) and that the Complainant had characterized Ms. YE as a “villain.” Ms. YE argued

that these actions, and not just the Complainant performance while on charge or

training, should be considered in the decision to return him to these duties. Although

the Complainant denies making the above statements, he did share with co-worker

that the Respondent had refused to return him to his pre-leave duties and that this was

a violation of his rights. In a subsequent email, Ms. YE claimed that she had “jumped

through hoops to accommodate [Complainant’s] FMLA intermittent leave rights,”

and she concluded by saying Complainant should not return to his pre-leave duties.

48. (C) On 2/5/07, the Complainant’s doctor sent a note to the Respondent indicating that

he had reviewed the job description for the training and charge duties and concluded

that, “[t]here are no duties that should be avoided at this time.” Despite this explicit

clearance provided by the Complainant’s doctor, the Respondent continued to

exclude the Complainant from his pre-leave duties.

49. (C) On 3/12/07, Ms. YE informed the Complainant that his job classification was

being changed from Equipment Maintenance to Special Projects and, that as a result,

he would not be entitled to future raises until the pay grade for Special Projects

exceeded his then current salary. On or about 4/9/07, the Complainant had another

meeting with Mr. NI about returning to the pre-leave duties and Mr. NI said nothing

was going to change and that if the Complainant did not like working for the

Respondent, he could find a job elsewhere.

50. (C) On 4/24/07, Ms. YE reprimanded the Complainant for not calling in to say he

would be late. On 4/30/07, the Complainant was given a written warning for failing to

call in an hour before a shift he could not work. On two occasions cited by the

reprimand, the Complainant had called in, just not a full hour before his shift. The

Complainant explained that on each of these occasions he was not aware that he

would be unable to work until shortly before his shift was due to begin, therefore, he

provided as much notice as was practicable, but was disciplined anyway.

51. (C) On 4/245/07, Mr. NI informed the Complainant (by letter) that they were

requiring recertification of his intermittent leave because the Respondent thought full

leave might be more appropriate. They required the Complainant to provided

documentation showing he only required intermittent leave, by 5/14/07, with

disciplinary consequences for any delay. Mr. NI also suggested in that letter that the

Respondent would be setting up an evaluation with another psychiatrist for a second

opinion about the Complainant’s disabilities.

52. (C) Due to the ongoing violations of his rights and harassment by Respondent’s

management, the Complainant went out on leave on 5/2/07. He remained out on

FMLA leave until it was exhausted and continues on administrative leave today.

53. (Investigator) The following additional information was offered by the parties and

witnesses at the two Fact Finding Conferences held on this case:

Complainant – The first time I ever requested leave due to my mental disability

was in June 2006, shortly after having a run in with a worker on the

second shift. I was out about a week. About one month later I had a

meeting with the new Housekeeping Manager, Ms. YE, regarding how

many of my hours each week were spent solely on Equipment

Maintenance. I estimated this to between 15-20 (of my 40) hours. I told

Ms. YE that this was due to the amount of other duties I was also assigned

to do. The night supervisor would also send out equipment for repairs. The

only training I ever received on equipment repair/maintenance was on-the-

job. At that meeting with Ms. YE, we did discuss doing Special Projects

work, plus training and charge, as well as why I would need an office for

these duties. We did not discuss the computer issue on that day, but we did

during follow-up conversations. I needed the office and the computer

because it was easier, quieter, and more private to train that way. The

other computers the Respondent offered were not private and always in

use. By the time I realized the office was not going to happen, my former

position in Equipment Maintenance had already been given to Mr. SE. I

have no idea whether Mr. SE had more experience or training in that type

of work than I had. I was only asked once to remove from belongings

from the Equipment Maintenance room and then 4-5 days later my stuff

was removed. I gave the key to the room back in early November. I never

refused to return the key or remove my stuff (repair notebooks, lamp, coat,

coffee mug) from the room. All supervisors did have their own office or

at least a cubicle. I believe that Ms. YE began retaliating against me

because I told her off about not keeping our agreement regarding the

office, computer, etc. I never threatened not work on scheduled charge

weekends. I did leave a note in October telling Mr. SE that I planned to

talk to others about returning to the Equipment Maintenance job.

Between November-December 2006, I recall doing training about once a

week, although I did miss a training when I could not be there on 12/20/06.

I never told any co-workers that Ms. YE or others in administration should

not be trusted. In early January in did tell Mr. NI that my doctor had

advised me to remove weapons from my home after I disclosed suicidal

thoughts to him following the incident when I reported to work but was

not allowed to work on 12/29/06. I do not recall if I discussed suicidal

thoughts with Mr. NI. I brought the fact about the gun removal in the

context of conversation where I assured Mr. NI that I had no ill will

towards my co-workers or management. I had asked my brother to

remove my weapons because of my own concerns. I had already

discussed my charge and training duties with my nurse practioner before

she provided the first note clearing me to return to work without

restrictions. My doctor already knew about the gun issue by the time he

provided the second note clearing me to return to all pre-leave duties

without restrictions. When I was told that the Respondent did expect me

to work rotating weekends, but not be on charge, I did say that if I’m

responsible enough to work weekends, I’m responsible enough to work

charge. Although it is true that I did not swipe out my time card when I

left for doctor’s appointments, it was because I thought that time would

be covered by worker’s compensation. The reason I was given for not

being reinstated to charge and training duties was that I was not

responsible enough or enough of a role model. Although I know that

another employee, Mr. SE, may have been “red lined” like I was, I

believe that his situation was different. By late December/early January,

both myself and another worker were told we would no longer be getting

overtime. When I was late for work on 4/27/07, it was due to the fact that

I had just changed medications. Plus, in March through May 2007, I told

the employer that I no longer had a telephone, so I could not call in.

Mr. NI – When the Complainant raised the issue about having a computer for

training, I told him he could use any of the six computers were make

available for traveling workers. The Complainant said he did not care and

that he wanted his own office. Charge and training duties were originally

deferred in early January 2007 because of the Complainant’s behavior at

work and his statements to co-workers. The emotions he displayed during

our 1/3/07 meeting ranged from pounding on the table to crying. In the

next meeting on 1/7/07, the Complainant was extremely angry, then

fidgety, and then angry again. I advised the Complainant that there was

more leave time available if he needed it. Other housekeeping employees

had expressed concerns to management about their own safety. The first

time I learned that the Complainant had bad mouthed management was in

late January. In other words, the first refusal of extra duties was based

upon my observations of the Complainant’s behavior during our early

January meetings, and a decision to seek more information from the

medical providers who cleared him. By the 2/2/07 email from Ms. YE,

my opinion had changed to not reinstating the Complainant even though

he had been medically cleared, due to the new information from Ms. YE

and others that the Complainant had been calling Ms. YE a “villain,” and

had been telling other employees, including one of his co-workers, Mr.

NO, not to listen to Ms. YE. The Complainant never claimed that his

many absences and tardiness were related to his disability, nor did the

Respondent assume or ask if they were.

Ms. YE – I began working as the Respondent’s Housekeeping Manager in June

2006. Soon after I began, I met with the Complainant and discussed how

much of his work was spent purely on Equipment Maintenance versus

other aspects of his job. The Complainant mentioned that he did not care

for equipment maintenance work and that he preferred doing special

projects and training. Based upon the volume of invoices for outside

repair and maintenance work, it appeared the Complainant was

performing almost exclusively Special Projects work anyway, so I agreed

to grant his request and change his position from Equipment Maintenance

to Special Projects, as of September 2006. The Complainant never

claimed that the minimal amount of time he spent on Equipment

Maintenance was due to time issues. There was never any discussion of a

trial period in which the Complainant could reassume the Equipment

Maintenance job if he chose to. I also never agreed to provide the

Complainant with an office for his new position in Special Projects. He

had no need for an office once he was moved from Equipment

Maintenance to Special Projects. His prior office was really just a small

room provided in which he could repair and maintain hospital equipment,

so this space passed to the individual who took over the Equipment

Maintenance position, Mr. SE. The Complainant was asked repeatedly to

remove his stuff from the office but he never did. Approximately six

weeks after he first promised to do so, Mr. SE finally moved the

Complainant’s belongings out of the Equipment Maintenance room. None

of the Complainant’s property was thrown away. In his new position, it

was discussed that the Complainant would continue working charge every

third weekend (as he had been doing prior to the switch) and that he

would do some training. I believe that between October through

December 2006, the Complainant trained one individual, and was

starting to train one more, but that person quit. I noticed that the

Complainant would threaten not to come in on his scheduled charge

weekends if he was upset about something. This attitude began after the

Complainant realized that he could not keep the Equipment Maintenance

office after he switched jobs. The Complainant also asked for a computer

but he was told that there were ones available for his use. The

Complainant was never promised an office or a computer because neither

was required for him to perform his Special Projects duties. In early 2007,

the training duties were taken away due to the Complainant’s attendance

issues and unreliability. The charge duties were taken away because of his

attitude, namely that he was belligerent and non-supportive of me and

others in administration. Several employees, including the Complainant

co-worker is Special Projects, Mr. NO, as well as Mr. GI and Ms. KC,

told me that the Complainant had asked them not to do as I asked. Mr. GI

said the Complainant was “spreading hate and discontent” every time my

name came up. Ms. KC said the Complainant told her that I was bad for the

department. The Complainant was supposed to be the voice of the

department when he was working charge so this was clearly inappropriate.

Attendance and tardiness were issues from day one but the Complainant

never attributed either of these to any disability. He said he just had trouble

getting up in the morning so I suggested he could start his shift later in the

morning but he refused. Prior to May 2007, I knew that the Complainant had

taken FMLA leave but I had no idea what it was for. I never held the fact

that the Complainant needed FMLA time against him although it definitely

did interfere with his ability to do training, as there was no substitute trainer.

I was also in the room when the Complainant told Mr. NI about the guns

being removed from the Complainant’s home. In my notes from the 1/10/07

meeting where I mentioned that we needed the Complainant to be “stable

and reliable” before resuming charge or training, I was referring to his

attendance (not his mental condition).

Mr. NO ( Special Projects co-worker) – I have been with the Respondent about 3

½ years and I am still in Special Projects. I had worked with the

Complainant prior to Ms. YE becoming housekeeping manager in June 2006.

I did not see any friction between the Complainant and Ms. YE until 6-8

months after she became manger. There was definitely more independence

for Special Projects workers before she arrived and some workers did resent

the way she had more control over how they did their jobs. For instance,

Special Projects in other departments, like the Emergency Room, used to be

coordinated directly the Special projects workers and the department,

whereas afterwards all such projects had to be coordinated through Ms. YE.

Less free reign was probably more of an issue with long time employees like

the Complainant. In Special Projects, I never had any need for an office or a

computer. I recall the Complainant asking me not to do a certain job or stay

after to do a job but I do not recall the specifics. The Complainant suggested

that I and others in Special Projects should stick together against Ms. YE. I

believe it may have been in reference to a policy about wearing hats. The

Complainant did complain to me about the fact that he was upset about his

charge duties being taken away and he suggested I also refuse to do charge

if asked.

V. ANALYSIS AND CONCLUSIONS

1. The Maine Human Rights Act requires the Commission in this investigation to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. § 4612(1) (B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

2. In this case, the Complainant alleges that, after he disclosed the existence of a mental

disability to his employer in 2006 and requested FMLA leave, the Respondent took

away certain job duties (charge and training), demoted him to lower pay grade and

froze his pay, and harassed and unfairly disciplined him until he had no alternative

except to leave his job, constituting a constructive discharge, although technically he

is still on unpaid administrative leave.

3. Respondent denied that it unlawfully discriminated against Complainant in any manner and states that certain peripheral duties, although originally removed while awaiting medical clearance, were later removed due to the Complainant’s unpredictable attendance and tardiness, as well as his poor attitude and efforts to undermine his supervisor and others in management.

4. The Maine Human Rights Act provides in part that it is unlawful to discriminate against an employee because of “physical or mental disability” “with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment.” 5 M.R.S.A. § 4572(1)(A).

5. Because there is no direct evidence of discrimination, the analysis of this case will

proceed utilizing the burden-shifting framework following McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Maine Human Rights Comm’n v.

City of Auburn, 408 A.2d 1253, 1263 ( Me. 1979).

6. First, Complainant establishes a prima-facie case of unlawful discrimination by showing that he (1) was a member of a protected class, (2) was qualified for the position he held, (3) suffered an adverse employment action, (4) in circumstances giving rise to an inference of discrimination. See Harvey v. Mark, 352 F. Supp. 2d 285, 288 (D.Conn. 2005). Cf. Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 30 (1 st Cir. 2002).

7.At the time of the alleged discrimination in this complaint, the Maine Human Rights Act, 5 M.R.S.A. § 4553(7-A) (Supp. 2006), defined “physical or mental disability” as follows:

“Physical or mental disability” means any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness, and includes the physical or mental condition of a person that constitutes a substantial disability as determined by a physician or, in the case of mental disability, by a psychiatrist or psychologist, as well as any other health or sensory impairment that requires special education, vocational rehabilitation or related services.

Unlike the federal Americans with Disabilities Act, the Maine Act’s definition of disability did not require a showing of a substantial limitation on a major life activity. See Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ¶ 31, 895 A.2d 309, 316.

8. Once Complainant has established a prima-facie case, Respondent must (to avoid liability) articulate a legitimate, nondiscriminatory reason for the adverse job action. SeeDoyle v. Department of Human Services, 2003 ME 61, ¶ 15, 824 A.2d 48, 54; City of Auburn, 408 A.2d at 1262. After Respondent has articulated a nondiscriminatory reason, Complainant must (to prevail) demonstrate that the nondiscriminatory reason is pretextual or irrelevant and that unlawful discrimination brought about the adverse employment action. See id. Complainant’s burden may be met either with affirmative evidence of pretext or by the strength of Complainant’s evidence of unlawful discriminatory motive. See City of Auburn, 408 A.2d at 1262, 1267-68.

9. In order to prevail, Complainant must show that he would not have suffered the adverse job action but for membership in the protected class, although protected-class status need not be the only reason for the decision. See City of Auburn, 408 A.2d at 1268.

10. It is a violation of the Maine Human Rights Act if, although not formally terminated,

an employee has no reasonable alternative to resignation because of intolerable

working conditions. See King v. Bangor Federal Credit Union, 611 A.2d 80, 82 (Me.

1992). “The test is whether a reasonable person facing such unpleasant conditions

would feel compelled to resign.” Id. In addition, “an employee can be constructively

discharged only if the underlying working conditions were themselves unlawful (i.e.,

discriminatory in some fashion).” Sweeney v. West, 149 F.3d 550, 557-558 (7 th Cir.

1998).

11. The parties agree that the earliest the Complainant was diagnosed with, or made the

Respondent aware of, any mental health disability was in June 2006. Therefore, any

discipline or counseling received prior to that point in time could not have been due to

any discrimination based upon his disability. Also, while it is conceded that the

Complainant’s extensive work history stretched over two decades, the records are

replete with many instances or recurring problems with attendance, tardiness, and to a

lesser extent, problems getting along with co-workers.

12. Another crucial issue involves the earliest point in time when Ms. YE knew that the

Complainant had any type of disability. Although Ms. YE originally claimed at the

FFC that she had no knowledge that the Complainant had any mental disability until

May of 2007, her statements at the FFCs confirmed that she had in fact been provided

a contemporaneous copy of the Complainant’s letter dated 1/4/07 wherein he referred

to treating with a psychiatrist for a number of mental health conditions (anxiety and

PTSD). However, the Complainant has not claimed, nor has any evidence been

offered, which suggests that Ms. YE had any knowledge of any specific disability the

Complainant might have prior to January 2007, although she may have been aware

that the Complainant had used intermittent FMLA leave for an undisclosed condition.

This appears to refute that any of the employment decisions she made (involving the

Complainant) prior to that date could have been based upon mental health disability

discrimination. Therefore, the decision to switch the Complainant from Equipment

Maintenance over to Special Projects, and the related issues (private office, computer,

telephone, space for a coffee pot, removal of his items from his former office, not

allowing him to work when he showed up unannounced on 12/29/06, etc. ) could

not have been based on disability discrimination. Even if one is to assume that Ms.

YE was motivated to retaliate due to the Complainant’s prior or current use of FMLA

time (for an unspecified condition), this is not covered under the Maine Human

Rights Act or the ADA. The Complainant has consistently stated that it was Ms. YE

(and not other individuals in management or HR who may have known details about

his mental health disability prior to January 2007) who made the decision to switch

him from Equipment Maintenance to Special Projects, and the related decisions about

his need for an office, computer, etc.

13. Therefore, the issue becomes what terms and conditions were modified by the

Respondent and/or Ms. YE after both became aware of the Complainant’s disability

in January 2007. The Respondent has offered two justifications for not reinstating the

Complainant to charge and training duties after returning from leave in early January

2007. The initial refusal to reinstate immediately was allegedly due (based upon Mr.

NI’s statements) that the Complainant’s erratic behavior at meetings in early January,

as well as his disclosure that he had asked his brother to remove the guns from his

home, caused the Respondent legitimate concerns about whether the Complainant

was capable of returning to work and whether he might pose a threat to himself or

others. This explanation appears credible and the Respondent’s efforts to obtain more

information from the Complainant’s health care providers on this issue appears to be

both proper and prudent under the circumstances. It is also found that even the

Respondent’s subsequent inquiry, asking more specific questions regarding the

charge and training duties, was also nondiscriminatory since they had no way of

knowing whether the healthcare provider had a full grasp of the nature of these

additional duties when originally clearing the Complainant to return to work.

14. However, once the Respondent received yet further clarification that even these duties,

in the doctors opinion, were capable of being performed by the Complainant, the

Respondent asserted a new and distinct reason for not returning the Complainant to

the charge and training duties – namely, poor attitude (with respect to returning him to

charge duties) and unreliability (with respect to training duties). Although there is

evidence suggesting that the Complainant’s attitude (speaking negatively about Ms.

YE, suggesting co-worker not follow her work directions, threatening not to work

charge if he was upset...) may have existed prior to January 2007, there is no evidence

that the Complainant was in imminent danger of losing his charge or training duties

prior to January 2007, when he wrote his 1/4/07 letter which detailed his then existing

mental health issues. The same is true with respect to the unreliability justification for

no longer allowing the Complainant to perform training. While the Complainant

concededly unpredictable attendance schedule may indeed have warranted removal of

his role as trainer, the fact that this justification never came to light until after he had

already been cleared to return to all of his pre-leave duties, casts doubt on whether

these justifications would have led to removal of these duties had the Complainant not

disclosed the extent of his mental health issues in January 2007. Although it is

conceded that these so-called peripheral duties did not comprise a substantial portion

of the Complainant overall (pre-leave) duties, the fact that both did result in a slightly

higher rate of pay, does render their removal as a cognizable term and condition of

employment.

15. With respect to the Complainant’s other claim that he was denied overtime due to his

disability, in addition to the altered terms and conditions considered above, the

Complainant stated at the FFC that the removal of overtime opportunity applied to

both himself, as well as a co-worker who was not to be disabled. Therefore, if

overtime was discontinued, there is no evidence establishing that it was based upon

the Complainant’s disability.

16. The Complainant has also alleged that, after January 2007, he was subjected to unfair

and inordinate discipline due to his disability disclosure. Specifically, he refers to

being counseled about going to doctor’s appointments without swiping out, as well

as being disciplined in April for repeatedly not calling in an hour prior to his shift

when he could not come to work. Neither of these appear to be discriminatory in

nature. The Complainant concedes that he should have swiped out when he left for

appointments and states that he always did so once he was later made aware of this

policy. It is not discriminatory to enforce the same rules against the Complainant that

they applied to all other (non-disabled) employees who left work. Further while the

Complainant claims that the warning about his attendance and failing to call in must

have been related to his disability disclosure, the Complainant work history had

myriad warnings about these exact same issue, stretching back over a decade before

he ever disclosed any disability. Although the Complainant has suggested that most

if not all of these prior incidents involving absences or tardiness may have been

related to his yet undiagnosed mental health condition, this is purely speculative and

the Complainant never raised this as a defense or explanation to any of the prior

disciplinary measures or counseling he received on these issues.

17. Another issue involves whether the decision to reclassify the Complainant under the

heading of Special Projects, rather than retaining his prior title of Equipment

Maintenance, on 4/24/07, was likely discriminatory. The Respondent has suggested

that this reclassification was initiated by HR to more properly reflect what the

Complainant was actually doing for job in April 2007, and that it probably should

have been done immediately after the Complainant formally left the Equipment

Maintenance position in October 2006. It is found that the Respondent’s explanation

for the April 2007 reclassification is credible and nondiscriminatory. Further, the fact

that the Respondent did not concomitantly lower the Complainant’s salary to reflect

the lower paying job classification of Special Projects (versus Equipment

Maintenance), but rather allowed to him to stay at the higher rate of pay his prior

position afforded him, suggests that this move was not retaliation or an attempt to

force the Complainant to retire, but was rather just a legitimate effort to correct a job

classification that should have been corrected months earlier. The fact that the person

who succeeded the Complainant in the Equipment Maintenance position, Mr. SE, was

also similarly “red lined” in his position, refutes the suggestion that when this was

done to the Complainant, it was because of his disability.

18. Finally, since neither the above referenced reclassification in April 2007 nor the discipline relating to his attendance or failing to swipe out for doctor’s appointments are found to be discriminatory, the lack of reinstatement to the Complainant’s pre-leave duties of charge and training, standing alone, do not rise to the level of intolerable work conditions that a reasonable person would feel compelled to resign.

VI. RECOMMENDATIONS

Based upon the information contained herein, the following recommendation is made to the Maine Human Rights Commission:

There are REASONABLE GROUNDS to believe that the Complainant, [Complainant], was subjected to unlawful discrimination due mental disabilities when certain terms and conditions (charge and training duties) were eliminated; and

That conciliation of this part of the complaint should be attempted in keeping with 5 M.R.S.A. § 4612;

That there are NO REASONABLE GROUNDS to believe that the Complainant was constructively discharged; and

That this portion of the complaint should be dismissed in keeping with 5 M.R.S.A.§ 4612.

______________________________ ______________________________

Patricia Ryan Robert D. Beauchesne

Executive Director Field Investigator

During later questioning at the FFC, Ms. YE admitted that she had been provided a copy of the Complainant’s

1/4/07 letter to the Respondent’s CEO, wherein the Complainant mentioned that he had a “nervous condition” and

Post Traumatic Stress Disorder (PTSD), and that he had seen a psychiatrist. The Complainant has not asserted that

Ms. YE actually had knowledge, or should have had knowledge, of the Complainant’s disability prior to 1/4/07.

COMMISSION INFORMATION

Investigators Report: E07-0226