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Investigators Report: E07-0532

[Complainant]

v.

[Respondent]

 

I.  COMPLAINANT’S CHARGE:

Complainant, [ ], alleges that Respondent, [ ], has refused to hire her for numerous positions because of disability discrimination and whistleblower retaliation. [Complainant] also alleged that Respondent failed to provide her with a reasonable accommodation for her disability.

II. RESPONDENT’S ANSWER:

Respondent, [ ], denied the allegation of discrimination and retaliation and said that Complainant was not hired for the positions she sought for legitimate non-discriminatory reasons. Respondent asserts that it is the employer’s prerogative to choose what reasonable accommodations to provide an employee and that the employer is not required to provide the particular accommodation requested by the employee.

III. JURISDICTIONAL DATA:

• Dates of timely alleged discrimination:  May 10, 2007 to February 4, 2008.

• Date complaint filed with the Maine Human Rights Commission:  October 23, 2007.

• Respondent employs 1150 employees and is subject to the Maine Human Rights Act, the federal Americans with Disabilities Act, as well as state and federal employment regulations.

• Respondent is represented by [Attorney 1]Esq.  Complainant represents herself.

• Investigative methods used:  A thorough review of the written materials provided by the parties, issues and resolution conference, detailed follow-up submissions.

 

IV. DEVELOPMENT OF FACTS:

• The parties and issues in this case are as follows:

• The Complainant, [ ], is a Registered Nurse (RN) who was hired by Respondent in 2003.

• The Respondent, [ ], ([Respondent]), is a not-for-profit health care organization in northern Maine. It operates a number of facilities including the [Hospital].

• In August 2005, while assisting a patient in the Med-Surg Unit, [Complainant] suffered a traumatic injury to her left upper extremity and developed adhesive capsulitis as a consequence of the injury. [Complainant] also has degenerative joint disease of the cervical spine and a herniated cervical disk. She has had work restrictions ever since her injury. During the time frame covered by this investigation, her restrictions were no lifting of more than 20 pounds and no overhead work.

• [Complainant] alleges that in February and March 2007, [Respondent] committed fraud by signing her name to a Leave of Absence Request Form, and by communicating false information about her to the Maine Department of Labor. She alleges that she complained about this to [Respondent]'s Human Resources Department, and then to the Department of Labor. 

• During the six months that preceded the filing of this complaint. [Complainant] applied for, and was denied, over a dozen positions. She alleges that the Respondent failed to provide her with a reasonable accommodation by assigning her to a vacant nursing position. She also alleges that Respondent refused to hire her due to disability discrimination and whistleblower retaliation.

• [Respondent] states that [Complainant] has been provided with reasonable accommodations and that she was not hired for the positions she sought for legitimate, non-discriminatory reasons.  

• Background:

• ([Respondent]) For a period of time following her injury, [Complainant] had temporary assignments filling in for other nurses.

• ([Complainant]) For the better part of a year after her injury, she worked the Med/Surg floor. At first, she waited for assigned tasks. She started doing more and more until she was able to function independently and take care of an assignment of ambulatory patients. She also frequently worked as Charge Nurse on the Med/Surg floor as well as on the Rehab Unit. In August 2006, she came to work and found her name crossed off the assignment list. The Med/Surg manager told her to meet with two HR representatives and the Vice President of Nursing Services (VP-LT). They told her they had decided to take her off the floor, that she should go home and wait until a position could be found for her. She did, and she returned to work in the Hematology Oncology Clinic (HOC) in the capacity of a float nurse. She knew that these were temporary assignments.

• On January 8, 2007, [Complainant] was assigned to a full time Medical Assistant position at the Horizon Health Services division. [Respondent] continued to pay her the RN pay rate. On February 2, 2007, after a dispute involving [Complainant]’s eligibility for “float pay,” [Respondent] withdrew the assignment and did not place [Complainant] in another position.

• ([Complainant]) She was told that her position was no longer available. She did not receive a workers’ comp check. She tried to find out why and was told that [Respondent] informed the workers comp insurance company that she had refused work, which was untrue. She wrote a letter and faxed it to the [Respondent] Human Resources Department. An HR representative told her, “You are gainfully employed without a position.” She tried to find work but couldn’t, so she applied for unemployment. Her unemployment claim was rejected because [Respondent] reported to the Department of Labor Bureau of Unemployment Compensation that she had requested a medical leave of absence. She told the Bureau that was false and that she had never applied for a medical leave. She was able to collect unemployment benefits but her benefits were delayed because she had to prove that she was able to work and that the reason she was not working for [Respondent] is that [Respondent] had no work for her. “I went without a paycheck for six weeks and was unable to obtain any form of support due to acts committed against me by [Respondent] administration and the Human Resources Department.”

• ([Complainant]) She believes that [Respondent] violated several Maine state statutes, which include 17-A M.R.S.A. § 707 and 26 M.R.S.A. § 1051.  She contacted and filed a complaint against [Respondent] with the Maine Department of Labor. She had good reason to believe that [Respondent] would not have corrected the problem if she complained to the employer. To this day, [Respondent] denies that it did anything wrong.

• (Fax from [Complainant] to [Respondent] HR) “The insurance company filed a notice of controversy. The insurance company stated I refused suitable work. I did not refuse suitable work. I will accept any suitable work including the Horizon position.”

• (Maine DOL Request for Separation / Wage Information) The [Respondent] HR representative who signed the LOA request on behalf of [Complainant] wrote on March 8, 2007, “[Complainant] is out on workers compensation, currently we do not have a modified duty position to put her in.”

• ([Respondent]) HR took steps to protect [Complainant]’s job status and benefits by officially placing her on a workers’ compensation leave of absence from February 2 until the end of March 2007 when work within her medical limits was again available at [Respondent]. The documentation was accomplished by the HR Department. In [Complainant]’s absence, the form was “signed” with the words, “For: [Complainant]/(initials)” as was routinely done. No effort was made to have the document look as if it had been signed by [Complainant].

• (Leave of Absence Request Form) The form was signed on March 21, 2007, after [Complainant] returned to work. A Human Resources representative filled it out “For [Complainant]” requesting a leave of absence from February 2, 2007 until March 20, 2007. The reason provided: “Work Related Injury.”

• ([Complainant]) She was not out of work because of her injury. She was ready, able and willing to work. She was out of work because [Respondent] did not provide her with any work.

• (IRC) [Complainant] and the HR Manager both attended an Issues and Resolution Conference. Although [Complainant]’s alleged whistle blowing occurred in February – March 2007, it is apparent that this dispute is a “live” issue. The HR Manager believes that [Respondent] was just trying to protect [Complainant]’s job. [Complainant] is still wounded by the hardships caused by six weeks without an income, believes that [Respondent] could have prevented that. 

• ([Complainant]) She started back to work on March 21. She was present in the building and easily accessible a few offices down the hall in the Radiation Department when the form was signed on March 21 and March 22 by HR representatives. HR representative knew where she was and how to contact her. They called her and told her to come to HR to pick up the document after it was signed.

• When [Complainant] returned to work, she was assigned to two part time positions that amounted to full time employment. She filled in for an absent RN in Radiation Oncology. She also worked as a Clinical Educator for the IS Department. In June 2007, the regular RN returned to Radiation Oncology. Since then, [Complainant] has worked part time in a charting job (which does not utilize her nursing training) in the Medical Records Department. She continues to work part time as a Clinical Educator in the IS Department. [Respondent] continues to pay [Complainant] at her RN pay rate for her work in Medical Records.

• ([Complainant]) In the Medical Records department, she was paid RN wages to put stickers on charts. On a daily basis, doctors would go in to Medical Records to sign things and just stare at her and ask what she was doing there. She told them the truth, that she was assigned there by HR. Their responses: “Why?” “You got to be kidding me. They can’t find you something else?” “Really? But you’re an RN.” It was uncomfortable, at best.

• ([Complainant]) The [Respondent] procedure to fill a vacant position is as follows. An application is accepted on line only. It is directed to the Human Resources Recruitment Team for review to ensure it is appropriate and meets certain standards. The application is either rejected and the applicant is notified, or it’s not rejected and the prospective employee’s application is forwarded to the department manager for further review. The applicant is notified of these actions.

• The following paragraphs outline the jobs [Complainant] has sought and not received, since May 10, 2007, along with [Respondent]’s stated reasons for not hiring her to fill the positions.

• Nurse Educator, Infection Control (07-0656) April 2007.

Number of applicants: 5.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-TBF) This was a temporary part time position. She was looking for a candidate who did not need a lot of training and someone with a lot of experience in this setting. The first candidate she considered had done immunizations for 25 years at a local school and knew all of the reporting channels and the requirements for the immunizations for the State of Maine. She interviewed this candidate and the staff did a peer review of her afterwards. They cancelled other interviews because they immediately decided that the candidate was a great fit with the most experience. She had not scheduled an interview with [Complainant], and did not call her to cancel any interview. 

• (Successful Candidate’s application) Experience: SC’s most recent position was as Charge Nurse / Treatment Nurse at a retirement home (March 2006-July 2006). She left that job and moved to Florida where she, apparently, did not work. Before working at the retirement home, SC worked as a school nurse and then Health Services Director in public school from 1993 to 2006. She developed and taught the State of Maine Certified Nurses Aid Course from January to June 1993. Before that, she was a Charge Nurse at a health care facility from 1998 to 2003. Education: SC has a 4 year nursing degree (Bachelor of Science-Nursing, BSN).   

• ([Complainant]) She and SC both have a BSN. SC does not have any formal education as a Community Health Educator. [Complainant] has a Bachelor of Science in Community Health Education. SC had, in the past, worked as a school nurse in a school setting. [Complainant] was currently working in the setting where this job was located, a hospital. [Complainant] was an active member of the Patient/Resident/Family/Education Team. SC was hired as an external candidate. She and SC would both need some training to do the job.

She received a call about the job from Senior Manager-TBF, inviting her to interview for the position. TBF later called back and cancelled the interview, noting that she had spoken in the meanwhile to Human Resources. (Senior Manager-RBF denies scheduling or canceling this interview, see above.)

She had more education and current relevant experience than the successful candidate. She was also an internal candidate who was in need of a “reasonable accommodation” for her disability.

SC was not, in fact, a “good fit” for the job. She lasted in the position for less than a year. [Complainant] spoke to SC after she left the position, and SC told her that she was not well suited to the job and that was why she left. 

• RN/LPN, HHS Administration (07-0999) May 2007.

Number of applicants: 65.
Number of people interviewed: 3.
Does Respondent dispute that [Complainant] was qualified?     No.

• [Complainant] worked for Office Manager-SH at the time of her early 2007 dispute regarding an alleged violation of the union contract, see paragraph 1(d) above.

• (Office Manager-SH) She did not consider hiring [Complainant] because [Complainant] had refused to travel to other HHS offices while employed for her in the past, because [Complainant] had frequently called about her schedule, and caused dissention with other employees.

•  ([Complainant]) Her engine was being replaced and, temporarily, she could not travel to distant offices. She did everything she could to get her engine fixed and her vehicle back on the road and SH knew that. She did not complain about her schedule and did not do anything to cause dissention with other employees.

•  Health Services Manager, Hematology/Oncology (07-0841) May 2007.

Number of people who applied: 10.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Vice President-GD) The ideal candidate for the position would have been a registered nurse, responsible or staffing, budgeting, directing and coordinating the activities of all practice personnel, acting as a liaison with numerous hospital departments, maintaining an efficient flow of practice work and general oversight of daily operations for busy medical practices while maintaining an environment of excellence in patient care. The position required a minimum of a Bachelor’s degree in a related field or the equivalent experience and a clinical background was preferred. She interviewed one candidate for the position. The candidate was an RN within the department and possessed the Oncology Certification. She did not interview [Complainant] for the position because [Complainant] did not have the level of experience as the successful candidate, had no chemotherapy experience in Hematology/Oncology, and did not have the Oncology Certification.

• ([Complainant]) Although the successful candidate (JM) had an Oncology Certificate and more experience in Oncology than she had, these qualities do not explain why JM was hired and not [Complainant].  JM stepped down to a clinical nurse supervisor position shortly after she was hired. The person selected to replace her (PB) is not a Registered Nurse, did not have Oncology Certification, did not have chemotherapy experience, and had never worked in the clinic before she was hired there as a manager. [Complainant] had worked in the clinic, knew the flow of practice work as well as the general daily operation. She had acted as a liaison with numerous hospital departments. She had management experience as a supervisor and charge nurse. [Complainant] was in the clinic when JM resigned from the position of manager, and she was known to be interested in the position. She should have received the position, not PB.

• (Vice-President GD) PB was not hired into the position when JM left. PB stepped in as the interim manager until VP-GD determined what the Department’s exact needs were. When the position was later posted, [Complainant] did not apply for it.

• Manager, Quality Mgmt Srvcs, ARG Quality Assurance/Utilization (07-1351) June 2007.

• ([Respondent]) The position was not filled. A decision was made at the Vice President’s level to have these duties assumed by an existing employee in the area as an expansion of her existing position.  

• Diabetes Nurse Educator, Ed. Servs. & Programs (07-1267) June 2007.

Number of applicants: 10.
Number of people interviewed: 4, including [Complainant].
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-MB) [Complainant] was one of the four candidates interviewed by her and Senior Manager-KH. [Complainant] was their second choice for the position. The successful candidate had been a manager for [Respondent] in the past and had been Director of Nursing for a local nursing home. She had years of experience as a nurse educator and had prior experience in a dialysis unit. Answers given by [Complainant] on several questions were not as good as the successful candidate’s answers. [Complainant] mentioned her physical restrictions during the interview but her restrictions had nothing to do with the decision to select the other candidate.  

• ([Complainant]) She and the successful candidate (LW) both had valuable experience as nurses and as nurse educators. She has prior experience in Hematology Oncology. LW had previous experience in the dialysis unit. The dialysis unit and hematology frequently “share” the same patients. Patients are usually seen in hematology first before they progress to the point of needing dialysis. [Complainant] has a degree in Health Education; LW does not. [Complainant] has been an HIV/AIDS educator. She was active as Patient/Resident/Family Education Team member at [Respondent]. LW and [Complainant] both had experience as managers (Charge Nurses). LW had experience as a Director of Nursing that [Complainant] lacked, but that experience is not relevant to the position.    

• RN, HHS Surgical Services (07-1219) June 2007.

Number of applicants: 8.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-KL) The only candidate she interviewed was an internal candidate who had operating room/surgical nursing experience as well as office experience. The surgeons and staff were familiar with her and she had an excellent reputation with them regarding her work ethic in the OR and her excellent customer service skills. Because of her excellent customer service skills and the fact that this applicant had the exact skill set that we were looking for, she did not interview any of the other seven candidates.

• ([Complainant]) She was an internal candidate, too, with excellent medical surgical experience and was already trained to work in that office. (She was working in that office the day she was laid off in February 2007.) She has excellent customer service skills (see evaluations). She knew the staff and was really hoping to work with them again. She has an excellent regulation with the surgeons regarding her work ethic as well as working in that office. OR experience is a good background, however, she has direct patient care of post-op patients. She has direct experience assessing post-op patients and wounds, doing dressing changes and patient education about discharge instructions and follow-up. The visit to the surgical office is a direct continuation from the floor.  

• (Senior Manger-KL) [Complainant] was not “already trained” in the surgical office. She had only started that training and had been trained for only a day and a half when she was removed from that office. She was nowhere near a trained staff member.

• RN, ARG Rehab Unit (07-1869) August-September 2007.

Number of people who applied: 2.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     Yes. Respondent asserts that the position was beyond [Complainant]’s physical limitations.

• (Senior Manager-BI) [Complainant] was one of two applicants for the job. The Acute Rehabilitation Unit is a six bed unit and, given that it is a rehabilitation unit the patients generally have mobility impairments and require assistance, which ranges from minimal assistance from one person to maximum assistance from two people. Although the average census on that Unit is three patients at a time, there can be up to six patients at a time. The Unit is staffed with only one RN and one Certified Nursing Assistant at a time no matter how many patients there are. Therefore, this position requires that both people staffing the Unit be able to meet the lifting requirements set forth in the job description in order to guarantee the safety of patients and staff. She worked with [Complainant] on the Med/Surg Unit and was aware of her work restrictions when she was on light duty.

• ([Complainant]) She does not believe that Senior Manager-BI ever saw her application or considered her for the position. She applied for this job online at 4:08 PM on August 28, 2007. By 11:27 A.M. the next morning, she received a rejection message from the Human Resources Recruitment Team stating, “We are pursuing other candidates who more closely meet our needs at this time.”

She worked for the better part of a year after her injury as Charge Nurse, part time, in this Unit. During the day shift, a physical therapist, occupational therapist, CNA and manager are present. She was able to work there without any problems after her injury due to the presence of so many disciplines. Dr. W is also frequently there and is just wonderful and extremely helpful. Other help comes and goes on a regular basis. For example, a speech therapist/respiratory therapist, etc. The unit is teeming with help during the day shift. By the time a patient is admitted to the Rehab unit, they are medically stable in need of strengthening and/or retraining and the like. On Tuesdays, evaluations are conducted and there are two nurses present besides the manager. The unit can hold up to six patients, however, in all her years at [Respondent], she has never seen six patients on Rehab; the likelihood of this happening is very low. Even with her injury she worked there on the evening shift with no problems.

• (Memo from [Respondent] to [Complainant] 3/4/06, with rebuttal) In March 2006, [Complainant] complained to [Respondent] that Senior Manager-BI had treated her with disrespect and harassed her due to her injury and physical limitations. [Complainant] complained that BI called her a “useless nurse,” and told her “why don’t you go home, we don’t need you here.”

• (Senior Manager-BI) While it is true that patients should be medically stable upon admission to the unit, the average patient needs more than moderate nursing care, assessment and observation. In the past six months, the unit has 23 days on which the patient census was five and eight days when the census was six. Ancillary personnel present in the unit are not there to assist with patient transfers.

• Phlebotomist, ARG Lab/Chemistry (07-2018) August 2007.

Number of people who applied: 21.
Number of people interviewed: 3.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-CF) [Complainant] was not considered because on the application she indicated that she wanted full time hours and was not available for part time work. The position was a part time position. The applicants for this position that were considered indicated on the application that part time hours were an option for them. The successful candidate was a person who had unsuccessfully applied for the Phlebotomy Coordinator position. She was an ideal candidate for the part time Phlebotomist position because she had training specific to the medical laboratory profession, experience as a phlebotomist in a clinical lab setting, and demonstrated outstanding behavioral and interpersonal skills when she was interviewed.

 

• (Successful Candidate’s Application) The successful candidate, AH, indicated that she was available for full-time, day shift work, and 12 hour shifts. She did not indicate that she would accept part time work. She was not a current [Respondent], and was not working as a phlebotomist, when she applied.

• ([Complainant]) She recalls that the position was advertised as full time with hours that varied from 5:00 A.M. to 8 P.M. on any given day. She decided to apply, regardless of the hours, because her current job was in Medical Records putting stickers on charts. She is a trained phlebotomist. She is qualified to do the work of a phlebotomist, and more. As an RN, she can do central line draws. Hiring her instead of a phlebotomist would have saved the time it takes to call for an RN when one is needed for certain procedures.

[Respondent] hired an external candidate with no disability who was qualified for the position over an internal candidate with a disability with far superior qualifications. She should have been taken out of Medical Records and given this position as a reasonable accommodation.

• RN, OR, ARG Operating/Recovery Room (07-2006) August 2007.

Number of people who applied: 5.
Number of people interviewed: 2.
Does Respondent dispute that [Complainant] was qualified?     Yes. Respondent asserts that the position was beyond [Complainant]’s physical limitations.

• (Vice President-LT) The posting for this position specifically noted that there was a preference for individuals with Operating Room (OR) experience, possessing the ability to both scrub and “circulate,” which also requires participation in OR “call rotation.” They were looking for someone who had extensive and consistent experience in the OR and the ability to practice independently as an RN – to be able to respond to after hours emergency cases to scrub and/or circulate on various procedures and surgeries, involving a familiarity with equipment and instrumentation to assist the surgeons performing the case. This is not a job for a beginner to the OR, and is not the same role as if one had cross-trained to help care for patients in the Recovery Room. Instead, we were looking for someone with years of experience in the OR specialty, rather than to train someone new. The two people interviewed both possessed the type of OR experience they were looking for. She offered the job to one of them. [Complainant] lacked previous OR experience and was not interviewed or hired. She is generally aware that [Complainant] has some lifting restrictions but this issue did not enter her mind during the selection process.

• (Successful Candidate Application) The successful candidate, PM, had an Associate’s degree and had been working as a scrub nurse RN for Vice President-LT since 2002

• ([Complainant]) She does not believe that VP-LT ever saw her application or considered her for the position. She applied for this job online at 4:08 PM on August 28, 2007. By 8:15 A.M. the next morning, she received a rejection message from the Human Resources Recruitment Team stating, “We are pursuing other candidates who more closely meet our needs at this time.”

As for her qualifications, although she does not have OR experience, nurses often go into OR nursing from other areas. The job requires excellent assessment skills, which she has. It is not physically demanding, which would be ideal for her. She was hoping that [Respondent] would see it as an asset to have her trained. 

•  Dialysis Tech, Hemodialysis Services (07-1991) August 2007.

Number of people who applied: 31.
Number of people interviewed: 6 by the hiring manager, 4 by peers.
Does Respondent dispute that [Complainant] was qualified?     Yes. Respondent states that dialysis techs must be able to assist and transfer patients in wheelchairs, and that these tasks exceed [Complainant]’s physical restrictions.

• (Senior Manager-MC) She did not know who [Complainant] was when she received her on-line application. What she saw is that [Complainant] was an RN which made her overqualified for a technician job. She thought [Complainant] had applied by mistake because in her entire time at [Respondent] she had never seen an RN apply for a technician job. She did interview [Complainant] because she was overqualified.

• ([Complainant]) She does not believe that Senior Manager-MC ever saw her application or considered her for the position. She applied for this job online at 4:08 PM on August 28, 2007. By 11:27 A.M. the next morning, she received a rejection message from the Human Resources Recruitment Team stating, “We are pursuing other candidates who more closely meet our needs at this time.”

She may be overqualified for the position, but at the time she applied, she was already working in a Medical Records job for which she was overqualified. She disagrees that she was physically unable to perform the job.

• RN, HHS Surgical Services (07-1941) August 2008.

Number of people who applied: 12.
Number of people interviewed: 4.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-KL) She interviewed two internal candidates who had office or emergency room experience with procedures and good to excellent customer service skills. She interviewed (by telephone) one outside candidate who had previously worked in [Respondent]’s OR and wanted to return to the area; she was currently working in a surgical setting and had the procedure experience. She interviewed another outside candidate who had prior surgical office experience and assisted with surgical office procedures. She also had excellent customer service skills. This was the candidate she selected as the best fit for the position.

[Complainant] was not qualified for the position because she did not have specialty office experience. Even if she had interviewed [Complainant], her customer service skills were fair and the successful candidate’s qualifications were far superior to hers.

• (Successful Applicant Application) The successful applicant had an Associate’s Degree and worked in a doctor’s office, assisting with minor surgery, at the time she was hired. She had previous experience working for an oral surgeon.

• ([Complainant]) She does not believe that Senior Manager-KL ever saw her application or considered her for the position. She applied for this job online at 4:08 PM on August 28, 2007. By 11:27 A.M. the next morning, she received a rejection message from the Human Resources Recruitment Team stating, “We are pursuing other candidates who more closely meet our needs at this time.”

As for her qualifications, she was an internal candidate who was already trained for work in this surgical office. She has more education than the successful candidate and hands on experience caring for post surgical patients. She has excellent customer service skills (see evaluations). She has assisted in procedures from taking out stitches to flow cytology and bone biopsies to a thoracentesis.

• RN, Horizons Cardiology (07-2471) October 2007.

Number of people who applied: 5.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     Yes.

• (Senior Manager-KL) The only applicant she interviewed was her second choice for the RN, Surgical Services (07-1941) position. He had skills from being a paramedic and emergency room RN and was a perfect fit for this position. He also had excellent customer service skills. She hired him and did not interview any of the other candidates.

[Complainant] was not qualified because she did not have specialty office experience and her customer service skills were only fair.

• ([Complainant]) She had specialty office experience for another employer, which Senior Manager-KL knew about from having worked with [Complainant] in the past. She had also trained in one of the Respondent’s specialty offices (Cardiology)

• Nurse Educator, Infection Control (07-3009) February 2008.

Number of people who applied: 5.
Number of people interviewed: 1.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Senior Manager-TBF) This was a regular part time position. The person she interviewed is someone who came in to talk to her about the position and hand-delivered her application. After she interviewed the candidate, the staff did peer interviews the same day. They felt she was a good fit and they offered her the position. When she was first asked about [Complainant] and this job opening, she checked her file and did not find [Complainant]’s application. When she was filling the position, she forgot to check for online applicants and did not see that [Complainant] had applied (again). She recently checked, and realizes that she accidentally overlooked [Complainant] as well as another online applicant. [Complainant] and the other person were not considered because of this.

• ([Complainant]) Senior Manager-TBF is known for being very detail oriented. As difficult as it is to believe that a manager “forgot” to look at applications for a position she was hiring for, let’s just say for argument’s sake that anyone can make a mistake. She also wrote about keeping her own “file.” Her excuse about not having [Complainant] in her “file” makes absolutely no sense. [Complainant] had already applied for the position earlier and she was interested enough to call her. One would think that with her qualifications she would have kept [Complainant]’s application in her “file.”

• (Successful Candidate’s application) SC has a BSN, but no formal training as a Health Educator. SC’s employment history (taken from her online application) includes working part time as an RN (2002 to the present) at in the Women’s and Children’s Health Unit at [Respondent], part time as a Nursing Instructor at the college level (2006 to the present). SC’s resume indicates that her occupational objective was a position as a Registered Nurse. Her resume indicates that she worked for an Ophthalmologist (2004 to the present) preparing patients for exams, lasers and minor procedures through assessment, implementation of nursing care and education.  

• I.S. Clinical Educator (08-0128) February 2008.

Number of people who applied: 3.
Number of people interviewed: 3.
Does Respondent dispute that [Complainant] was qualified?     No.

• (Director-RF) He and Supervisor interviewed [Complainant] and the other two candidates. They did not select [Complainant] for several reasons. The main reason was that she did not do as well in the peer interview process as the person who was eventually hired for the job. They felt that it is very important for the staff to have “buy-in” to choose a future co-worker, and the staff felt that the other candidate was a better fit overall for the department. Another reason was that [Complainant], who had been working in the department at times, had demonstrated a recurring issue with a lack of organizational stills when teaching classes. Excellent organizational skills are a key part of this role and they felt that [Complainant] would not be able to meet their expectations. This was also reflected in the peer interview comments. [Complainant] had also confided to Supervisor that she was very unhappy with [Respondent] and would soon likely be moving to Connecticut to be with her son and grandchild. They did not want to invest additional time and effort in training somebody that only planned on staying in the area for a short period of time.

• (Interview notes) One of the “Desired Attributes” listed on the Interview Notes was “Prioritizing/Organization Skills.” [Complainant] and the successful candidates both received the same score for organizational skills. There is nothing in the Interview Notes that indicates that [Complainant] planned to move to Connecticut.

• ([Complainant]) She was never interviewed by Director-RF. She had more relevant education than the successful candidate (SR). SR has an associate’s degree in nursing and no formal education as an educator. [Complainant] has a bachelor’s degree in nursing and a second bachelor’s degree in Community Health Education. They both have valuable nursing experience. [Complainant] has more education experience and was a member of the Patient/Resident/Family Education Team at [Respondent].

[Complainant] has received praise for her prioritization and organizational skills from the person who trained her and from her peers. She received a good yearly review from Supervisor.

She never told Director-RF or Supervisor that she did not plan to stay in the area and has no idea why Director-RF thinks this is true. She has lived in Aroostook County for 25 years, owns her home, which she loves, and loves the land where she lives. Her younger son owns his own home in the area and is engaged to be married. She is not moving anywhere. However, any hiring manager should realize that when he hires someone there is no guarantee they will stay. Since she started in I.S. Education, there has been a complete turnover of non-management educators. Furthermore, she had been working in I.S. Education for over a year and was already fully trained.

• (Performance Evaluation, Acting I.S. Clinical Educator) In [Complainant]’s May 2008 review, she was rated “satisfactory” for organizational and interpersonal skills. Out of 20 items rated, she received 17 satisfactory ratings and 3 ratings that was between satisfactory and outstanding.

V.  ANALYSIS:

• The Maine Human Rights Act requires the Commission 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. 

• Complainant, [ ], alleges that Respondent, [ ], has refused to hire her for numerous positions because of disability discrimination and whistleblower retaliation. [Complainant] also alleged that Respondent has failed to reasonably accommodate her disability.

• Respondent, [ ], denied the allegation of discrimination and retaliation and said that Complainant was not hired for the positions she sought for legitimate non-discriminatory reasons. Respondent asserts that it is the employer’s prerogative to choose what reasonable accommodations to provide an employee and that the employer is not required to provide the particular accommodation requested by the employee.

Failure to provide a Reasonable Accommodation

• Pursuant to the Maine Human Rights Act, unlawful discrimination includes “[n]ot making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity.”  5 M.R.S.A. §§ 4553(2) (E), 4572(2).

• To establish this claim, it is not necessary for Complainant to prove intent to discriminate on the basis of disability.  See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). Rather, Complaint must show (1) that she is a “qualified individual with a disability” within the meaning of the MHRA; (2) that Respondent, despite knowing of Complainant’s physical or mental limitations, did not reasonably accommodate those limitations; and (3) that Respondent’s failure to do so affected the terms, conditions, or privileges of Complainant’s employment.  See id.

• At the time hiring decisions were made before June 21, 2007, the Maine Human Rights Act (MHRA), 5 M.R.S.A. § 4553(7-A), 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 MHRA’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.

• For hiring decisions made after June 21, 2007, the MHRA, 5 M.R.S.A. § 4553-A(1)(A)(1-2), defines “physical disability” in relevant part as a physical impairment that substantially limits one or more of a person's major life activities or significantly impairs physical health. “Significantly impairs physical health” means having an actual or expected duration of more than 6 months and impairing health to a significant extent as compared to what is ordinarily experienced in the general population. 5 M.R.S.A. § 4553-A(2)(B).

• The term "qualified individual with a disability" means “an individual with a physical or mental disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.”  5 M.R.S.A. § 4553(8-D).  Examples of “reasonable accommodations” include, but are not limited to, making facilities accessible, “[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies. . . .”  5 M.R.S.A. § 4553(9-A) (emphasis added). 

• In proving that an accommodation is “reasonable,” Complainant must show “not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances.”  Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001).  It is Respondent’s burden to show that no reasonable accommodation exists or that the proposed accommodation would cause an “undue hardship.”  See Plourde v. Scott Paper Co., 552 A.2d 1257, 1261 (Me. 1989); Me. Hum. Rights Comm’n Reg. 3.08(D)(1) (July 17, 1999).  The term “undue hardship” means “an action requiring undue financial or administrative hardship.”  5 M.R.S.A. § 4553(9-B).

• Generally, Respondent is only required to provide a reasonable accommodation if Complainant requests one.  See Reed v. Lepage Bakeries, Inc., 244 F.3d at 261. 

• Here, Complainant, [ ], has had a “physical disability” within the meaning of the MHRA before and after the definition of “physical disability” changed in June 2007 in that she has a traumatic injury to her left upper extremity, adhesive capsulitis, degenerative joint disease of the cervical spine and a herniated cervical disk. [Complainant]’s physical impairments have lasted well over six months and limit her ability to lift and use her arms over her head to a significant extent as compared to the average person. It is undisputed that Respondent knows of Complainant’s physical limitations.

• Respondent, [ ], asserts that it has provided [Complainant] with reasonable accommodations during the time frame covered by this investigation by assigning her to work part time in the Medical Records department (where she does not utilize her nursing skills) and part time as a Clinical Educator in the I.S. Department. Respondent continues to pay [Complainant] her regular RN pay rate for her work in both part time jobs.

• Respondent argues that the employer, and not the employee, selects the reasonable accommodation. Respondent cites cases interpreting the Americans with Disabilities Act, which hold that an employer is not required to accommodate an employee with her preferred accommodation, in any manner in which that employee desires, nor is the employer required to provide the maximum accommodation or every conceivable accommodation possible. Using this standard, Respondent argues that [Complainant] may not pick her accommodation and [Respondent] is not required to place [Complainant] in a nursing position. There is no Maine Law Court decision on point.

• The federal Equal Employment Opportunity Commission provides interpretive guidance,  29 C.F.R. § 1630.2(o) App., as follows with regard to an employer’s responsibilities when assigning a person with disabilities to a vacant position:

“Reassignment may not be used to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities. Employers should reassign the individual to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time. ...

An employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.... The determination of which accommodation is appropriate in a particular situation involves a process in which the employer and employee identify the precise limitations imposed by the disability and explore potential accommodations that would overcome those limitations.”

• This process is discussed more fully in 29 C.F.R. § 1630.9 App., “Not Making Reasonable Accommodation.”

Once potential accommodations have been identified, the employer should assess the effectiveness of each potential accommodation in assisting the individual in need of the accommodation in the performance of the essential functions of the position. If more than one of these accommodations will enable the individual to perform the essential functions or if the individual would prefer to provide his or her own accommodation, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.

• If reassignment is otherwise an appropriate accommodation, the disabled employee must be given the vacant position for which she is qualified even though other, better qualified individuals have also applied.  See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002) at 29 (“Does reassignment mean that the employee is permitted to compete for a vacant position?   No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.”).  But see Larson, Employment Discrimination § 154.04 (2d ed. 2007) (noting split in the United States Courts of Appeals on this issue).

• In this case, the Respondent, [Respondent], failed to provide Complainant with the reasonable accommodation of an equivalent job for which she was qualified and that was available within a reasonable amount of time.

• [Respondent] failed to engage in any discussion with Complainant, [ ], to determine that accommodation was necessary and appropriate to overcome the physical limitations that prevented her from continuing to work as a Med/Surg Nurse. [Respondent] unilaterally assigned [Complainant] to one part-time job that utilizes her nursing and teaching skills and another part time job in Medical Records that has less status and is far less desirable. Clerical work is certainly an important function in the workplace, but it is undeniably tedious as compared to the responsibility and independent decision-making demanded of a professional nurse.

•  [Respondent] should have reassigned [Complainant] to an equivalent position in terms of pay, status, and work responsibilities, instead of assigning her to work part time in Medical Records. [Complainant] was qualified for the following jobs, which were equivalent and were vacant in June 2007 when [Complainant] stopped filling in for a nurse in Radiation Oncology and was assigned to work in Medical Records: Diabetes Nurse Educator (07-1267) and RN, HHS Surgical Services (7-1219).

• [Respondent] does not dispute that [Complainant] was qualified for these positions. Nevertheless, Respondent states that [Complainant] was the second choice of the hiring manager for the Diabetes Nurse Educator position; their first choice was an external candidate. [Complainant] was not even granted an interview for the RN, HHS Surgical Services position and the job went to an internal candidate without a disability.

• If one broadens the definition of jobs that were vacant within a reasonable amount of time, then [Complainant] also could and should have been offered the RN/HHS Surgical Services position (07-1941) or the Phlebotomist position (07-2018), both of which were filled in August 2007, and the Nurse Educator, Infection Control (07-3009) and I.S. Clinical Educator (08-0128), both of which were filled in February 2008.

• There is no evidence that the accommodation [Respondent] chose for [Complainant] (two part time assignments including a part time Medical Records position) was less expensive or easier to provide that assignment to a vacant position that was equivalent to [Complainant]’s former Med/Surg nursing position.

• Another category of hiring decisions in this case involve positions that [Complainant] sought that, according to [Respondent], she was not qualified for due to her physical restrictions. This includes the RN, ARG Rehab Unit (07-1869) position, the RN, OR, ARG Operating/Recovery Room position (07-2006) and the Dialysis Tech, Hemodialysis Services (07-1991) positions.

• [Complainant]’s applications were rejected almost immediately by the Human Resources Recruitment Team, which strongly suggests that the decision was made by HR, not the hiring managers, and that the decision was due to [Complainant]’s lifting restrictions and anticipated need for accommodations in these positions.

• [Complainant] disagrees that she is physically unable to perform these jobs without accommodation and believes that even if accommodations were needed (e.g., help with transferring patients), the accommodations would not impose any undue hardship for [Respondent].

• It is unclear, given the information that has been submitted, whether Complainant could, in fact, have been reasonably accommodated in these positions.  Complainant has met her burden of showing, “at least on the face of things,” Reed v. Lepage Bakeries, Inc., 244 F.3d at 259, that the requested accommodations would be reasonable.  Respondent has argued that it would have been necessary for Complainant to perform duties that were beyond her restrictions.  It is not found, for purposes of this preliminary investigation, that Respondent has met its burden of showing undue hardship.  See Plourde v. Scott Paper Co., 552 A.2d at 1261; Me. Hum. Rights Comm’n Reg. 3.08(D)(1).

Whistleblower Retaliation and Disability Discrimination

• The Maine Human Rights Act provides, in part, that it is unlawful employment discrimination to fail or refuse to hire an employee because of disability or because of previous acts that are protected under the Whistleblowers’ Protection Act (“WPA”).  5 M.R.S.A. § 4572(1)(A).

• The WPA prohibits discrimination against an employee who, acting in good faith, reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States. 26 M.R.S.A. § 833(1)(A). To gain protection under the WPA, an employee must first bring the alleged violation to the attention of a person having supervisory authority with the employer and allow the employer a reasonable opportunity to correct that violation. Prior notice to an employer is not required if the employee has specific reason to believe that reports to the employer will not result in promptly correcting the violation. 26 M.R.S.A. § 833(2).

• In order to establish a prima-facie case of retaliation in violation of the WPA, Complainant must show that she engaged in activity protected by the WPA, she was the subject of adverse employment action, and there was a causal link between the protected activity and the adverse employment action.  See DiCentes v. Michaud, 1998 ME 227, ¶ 16, 719 A.2d 509, 514; Bard v. Bath Iron Works, 590 A.2d 152, 154 (Me. 1991).  One method of proving the causal link is if the adverse job action happens in “close proximity” to the protected conduct.  See DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 514-515. 

• The prima-facie case creates a rebuttable presumption that Respondent retaliated against Complainant for engaging in WPA protected activity.  See Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 172 (1st Cir. 1995).  Respondent must then “produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse employment action.”  DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 515.  If Respondent makes that showing, the Complainant must carry her overall burden of proving that “there was, in fact, a causal connection between the protected activity and the adverse employment action."  Id.

• A prima facie case of disability discrimination utilizes a similar 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). First, Complainant establishes a prima-facie case of unlawful discrimination by showing that (1) she is disabled, (2) that she applied and (3) met the minimum objective qualifications for the job sought, and (4) that she was rejected.  City of Auburn, 408 A.2d at 1263.  

• Once Complainant has established a prima-facie case, Respondent must (to avoid liability) articulate a legitimate, nondiscriminatory reason for the adverse job action.  See Doyle 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.

• Here, Complainant has established a prima facie case by showing:

• [Complainant] has a physical disability as defined by the MHRA (see paragraph 11 above).

• [Complainant] “blew the whistle” in February and March 2007 when she, in good faith, complained that [Respondent] made false statements to the State of Maine Department of Labor in connection with her unemployment claim, and falsified private records by submitting a “request” for leave of absence form, on her behalf, without her permission or approval. [Complainant] believed that [Respondent]’s actions delayed her receipt of unemployment benefits for six weeks and caused her great hardship. [Complainant] wrote to, and spoke to, HR representatives about her concerns before making complaints about [Respondent] to outside agencies. This dispute is still a “live” issue between the parties.

• During the time period covered by this investigation, [Complainant] applied, and was not hired, for fourteen positions with [Respondent]. One of the positions (Manager, Quality Management Services) was not filled. There is no prima facie case of discrimination with regard to that position. [Complainant] established a prima facie case of disability discrimination and whistleblower retaliation with regard to the remaining thirteen positions for which she possessed the minimum qualifications and was not hired.

• Respondent [Respondent], in turn, asserted that [Complainant] was unable to perform the physical requirements of three out of the thirteen positions, and articulated legitimate, non-discriminatory reasons for not hiring her.

• At the final stage of analysis, there was insufficient evidence to find reasonable grounds of discrimination and retaliation in four hiring decisions.

• Nurse Educator, Infection Control (07-0656)

• According to the hiring decision maker, she was looking for a candidate who did not need a lot of training and someone with a lot of experience with infection control. Five candidates applied and only one was interviewed. She hired candidate whose application most closely fit the qualities she was seeking, after a positive interview by peers as well as the decision maker. After interviewing the successful candidate, the decision maker cancelled all other interviews with other applicants.

• Although information provided by [Complainant] shows that in retrospect, the successful candidate did not turn out to be a “perfect fit,” there is insufficient evidence to prove that at the time the decision was made, it was for discriminatory or retaliatory reasons.

• RN/LPN, HHS Administration (07-0999)

• Sixty-five people applied and only three were interviewed. The hiring decision maker stated that she did not consider hiring [Complainant] because she had refused to travel to other HHS offices in early 2007, because of [Complainant]’s complaints about her schedule, and because of complaints about [Complainant] by other employees. [Complainant] worked for this hiring decision maker when she complained, in early 2007, about an alleged violation of the union contract.

• There is enough evidence here to conclude that this hiring decision maker would not have hired [Complainant] even if she was not disabled and had not blown the whistle.

• Health Services Manager, Hematology/Oncology (07-0841)

• Ten people applied and only one was interviewed. The hiring decision maker stated that she was seeking a candidate who was an RN with Bachelor’s Degree, with clinical and management experience. She hired an internal candidate with an RN who had an Oncology certificate.

• Here again, it appears that in retrospect, the successful candidate did not turn out to be a “perfect fit,” and that she stepped down to a clinical nurse supervisor position after a relatively short time. However, at the time the hiring decision was made, the successful candidate appeared to be a more attractive candidate than [Complainant] because of her Oncology certificate and more extensive experience in that field.

• Diabetes Nurse Educator, Ed. Servs. & Programs (07-1267)

• Ten people applied for this position and four were interviewed, including [Complainant]. [Complainant] was the second choice of the hiring panel behind the successful candidate, who had been a manager for [Respondent] in the past and had years of experience as a nurse educator.

• [Complainant] points out, aptly, that her formal education is superior to that of the successful candidate in that she has a degree in health education as well as a Bachelor’s Degree in Nursing. Nonetheless, both candidates were asked the same questions by interviewers and the hiring panel found the successful candidate’s answers more to their liking.

• At the final stage of analysis, there is sufficient evidence to find reasonable grounds of discrimination and retaliation in five hiring decisions.

• Phlebotomist, ARG Lab/Chemistry (07-2018)

• [Complainant]’s qualifications exceed the minimum requirements for the Phlebotomist position. As an RN, she can draw blood and perform procedures that a Phlebotomist cannot perform. In spite of this, she was not even interviewed for the position.

• The hiring decision maker states that she did not consider [Complainant] for the Phlebotomist position because her application indicated that she wanted full time hours and was not available for part time work. This reason is a pretext for discrimination or retaliation because the successful candidate’s application shows the same thing.

• Rather than hiring [Complainant], a more qualified internal candidate with a disability who had “blown the whistle”, [Respondent] hired an external candidate with no disability who was not working as a Phlebotomist at the time she applied.

•  RN, HHS Surgical Services (07-1941)

• The hiring manager gave legitimate, non-discriminatory reasons for interviewing four candidates other than [Complainant], and for selecting a candidate who had a two year degree in nursing (vs. [Complainant]’s four year degree) with experience working in a surgical office (vs. [Complainant]’s experience which was primarily hospital-based).  

• However, there are reasonable grounds that the Human Resources office was responsible for rejecting [Complainant]’s application, and not the hiring decision-maker. Documents show that [Complainant] applied online at about 4:00 P.M. and that the following day, at about 11:30 A.M., the Human Resources Recruitment Team sent her a rejection message.

• Personnel in the Human Resources office were closely involved with [Complainant]’s whistleblower activity and had already failed to accommodate [Complainant] by assigning her to a vacant position that was equivalent to her Med/Surg nursing position.

• RN/Horizons Cardiology (07-2471)

• The hiring decision maker’s stated reasons for not interviewing or hiring [Complainant] are that the successful candidate (SC) was a paramedic and emergency room nurse with excellent customer service skills. She stated that [Complainant] was not even qualified for the position because she lacked specialty office experience and her customer service skills were only fair. 

• These reasons are untrue and pretextual. The hiring decision maker states that the successful candidate was her second choice for the Surgical Services (07-1941) position, yet she also states that she only interviewed one candidate for the Surgical Services position. Thus, the hiring decision maker could not have known anything about SC’s customer service skills much less how SC’s skills compared to [Complainant]’s. The hiring decision maker states that [Complainant] was not even qualified for the position because she lacked specialty office experience, yet there is no indication on SC’s application that he had specialty office experience.

• When an employer provides false reasons for a hiring decision it is reasonable to conclude that the true reason is due to discrimination or retaliation.

• Nurse Educator, Infection Control (07-3009)

• [Complainant] applied and was not hired for this position in April 2007. The job was vacant again in February 2008 and [Complainant] applied again. Senior Manager-TBF was responsible for the hiring decision both times.  

• Senior Manager-TBF states that she did not interview or hire [Complainant] in February 2008 because [Complainant] applied online (as she did in April 2007) and she (Senior Manager-TBF) forgot to check for online applications.

• Two reasons undermine the credibility of the hiring decision maker’s stated reason for not interviewing or hiring [Complainant]. First, the successful candidate was not a “perfect fit” for the position. She did not have formal training as a health educator and did not have experience with infection control. This fact alone would make a reasonable decision maker hesitate and look further for more qualified candidates.  Second, Senior Manager-TBF is an experienced manager who is familiar with [Respondent]’s hiring procedures.  

• I.S. Clinical Educator (08-0128)

• Three people applied and three people were interviewed. The hiring decision maker gave several reasons for not hiring [Complainant]. (1) She did not do as well in the peer interview process as the successful candidate. (2) [Complainant], who worked in the department part time, had demonstrated a recurring issue with lack of organizational skills when teaching classes; this was reflected in the peer interview comments. (3) [Complainant] had confided to Supervisor that she was unhappy and planned to move to Connecticut and they did not want to invest additional time and effort in training someone who only planned to stay in the area a short time. 

• The investigation revealed that the first reason listed above is true, and that [Complainant] did not do as well as the successful candidate in the peer interview process. However, evidence shows that the second and third stated reasons are not true.

• Organizational skills: [Complainant] and the successful candidate received the same scores in the peer interview process for organizational skills. On her Performance Evaluation for working in the I.S. Department during this time frame, [Complainant] received a rating of satisfactory for her organizational skills.

• Time and effort in training someone: [Complainant] was already working as an I.S. Clinical Educator in a part time “acting” capacity. Hiring her for full time work would have involved much less training than hiring someone from outside the department. Furthermore, [Complainant] denies telling Supervisor or anyone else that she plans to move to Connecticut. It is possible that Supervisor knew or guessed that [Complainant] is unhappy about [Respondent]’s refusal to assign her to a vacant position that is equivalent to the position she held before she became disabled.

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

• There are Reasonable Grounds to believe that the Respondent, [ ], failed to provide a reasonable accommodation to Complainant, [ ]; and

• There are Reasonable Grounds to believe that the Respondent discriminated against Complainant on the basis of disability and whistleblower retaliation by failing to hire her for five position; and

• Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

 

Patricia E. Ryan, Executive Director                          Barbara Lelli, Chief Investigator

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