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Investigators Report: E07-0244

Case # H07-0244

[Complainant]

v.

[Respondent]

 

I. Complainant’s Charge:

The Complainant, who is disabled, alleges that, after being referred out by his union for an available position at one of the Respondent’s job sites, he was “flagged” and refused employment because the Respondent was afraid he might get hurt on the job. 

II. RESPONDENT’S ANSWER:

The Respondent denies that it discriminated against the Complainant due to any disability and asserts that he was rejected for the short job in question due to the Respondent’s foreman’s personal knowledge of the Complainant’s past physical limitations and the fact that the job required heavy cable pulling. The Complainant was later offered a substitute job, but he refused.       

III. JURISDICTIONAL DATA:

Date(s) of alleged discrimination:  March 5, 2007.

1. Date complaint filed with the Maine Human Rights Commission:  May 14, 2007.
2. The Respondent employs 205 employees and is subject to the Maine Human Rights Act, the Americans with Disabilities Act, as well as state and federal employment regulations.
3. (Attorneys)  Respondent is represented by Attorney[ ]
4. The case was investigated by a thorough review of the written materials provided by the parties, interviews, as well as an Issues and Resolution conference.

 

IV. DEVELOPMENT OF FACTS:

1. (undisputed) The Respondent provides general contracting services as well as civil, structural, mechanical, electrical and industrial contractor services. The Complainant is a union electrician who has been sent by the union to many of the Respondent’s job sites over the past 10 years. The job site for the day in question (3/5/07) was for a “short call” for one week at the SAPPI paper mill in Hinckley, Maine. The Respondent’s foreman was Mr. UA, who had worked with the Complainant on a number of occasions in the past, including on a job in 1998 where the Complainant injured his back pulling cable. Respondent is owned by Mr. TT, who, together with Foreman UA, made the decision not to hire the Complainant.
2. (Complainant, hereinafter “C”) I am a qualified individual with a disability. On 3/5/07, I applied for an available position at the Respondent’s facility, about which I had been informed by the business agent for my union. I completed the application and gave it and other necessary paperwork to the Safety Officer. However, the Safety Officer then informed me that he had received a phone call telling him not to hire me because I had been “flagged.”  

I told the Safety Officer that they could not refuse to hire me because I might get hurt on the job. The Respondent was well aware of my disabilities based upon my prior employment with them. I believe that I was not hired because of my disabilities.

3. (Respondent, hereinafter “R”) On 3/1/07, a request was made by the Respondent for three industrial electricians to the Union Hall of IBEW local 1253 in Augusta. The job in question involved pulling heavy electrical cable, while standing on a ladder, at the SAPPI mill for a “short call” for one week. On 3/2/07, the Union gave the Respondent the names of three
   referred electricians, including the Complainant. At that point, on site Foreman UA informed Respondent’s Owner, Mr. TT, that the job in question involved solely cable pulling, with a lot of climbing and twisting, which, in Foreman UA’s opinion, he did not think the Complainant could do. Owner TT asked Foreman UA if there was anything else the Complainant could do and Owner TT was informed that the only work was the cable pulling. Over the weekend, Owner TT further considered the job assignment and he determined that the Complainant could not be accommodated on this job. Therefore, the Complainant was paid two hours show-up time for Monday, March 5th, but he was not permitted to perform this job. The two electricians who were sent to SAPPI job commenced work on 3/5/07 and were laid off 3/9/07.

4) (R) The day after the non-hire, the Respondent needed two electricians at another job site and the Respondent knew that the Complainant could be accommodated for that call because it did not require any heavy lifting or twisting. The Respondent contacted the Union hall and specifically requested that the Complainant be offered this call, but the Complainant refused to take that call. The Complainant has never been denied work by the Respondent and has worked on many calls for them, both before and after the one occasion when he was injured on the job and given specific work limitations. The Respondent was aware that the Complainant had degenerative disc disease which causes periodic low back pain. As early as 1998, the Complainant complained of injuries suffered to his back while pulling cable. A 1999 employment record confirmed that “...no heavy lifting should be performed.”

5) (R) While the Complainant was denied work on 3/5/07, he was paid two hours show-up time and offered work of equal duration, which he declined, which was within his rights under the hiring hall procedure.  The Respondent’s Owner Mr. TT made the decision not to hire the Complainant for the specific job in question because he concluded that the Complainant’s physical condition would not permit him to safely perform the job without the likelihood of injury to himself and possibly his co-workers. The Complainant was subsequently sent on numerous other jobs between March 10, 2007 and July 14, 2007, at which time he requested of his foreman that he be placed on voluntary layoff. He has not been referred since then.
    
6) (R) In sum, the Respondent denies that the Complainant was not hired due to his disabilities, but admits that he was not hired because of the Respondent’s knowledge of documented limitations on the Complainant’s ability to perform the specific tasks to which he would have been assigned. The Respondent also denies that the decision not to hire the Complainant was retaliation for his prior Workers’ Compensation claim against the Respondent, as shown by his many jobs with the Respondent, both before and after he was denied workers’ compensation.    
 
7) (C) What size wires were being pulled (at the job site on 3/5/07 at SAPPI) and how high a ladder was being used? Neither Foreman UA nor the Safety Officer would ever adhere to such a dangerous practice. Why not use building staging or use man lifts? I have worked for this company for about 10 years and I believe they are one of the safest in the state. The Respondent should have asked if they could make “reasonable accommodations” for me, such as by making me a “reel” man, instead of denying me employment. I have had the privilege of traveling and working jobs throughout the country but I have never been refused employment
except in Maine. I believe that the only reason why the Respondent continued to employ me on jobs (after refusing to hire me on 3/5/07) was due to my charge with the MHRC.    

8) (C) I had never met Respondent’s Owner Mr. TT (prior to the IRC) and he did not know my medical problems. I have never created a safety problem for co-workers around me in my 20 plus years in the Electrical Trade. The other work that was offered to me by the Respondent the following day (3/6/07) was at a lower rate of pay (commercial rate rather than industrial rate) and the job site was 60 miles from home.

9) The following additional information was offered by the parties at an Issues and Resolution conference and in post IRC submission period:

Complainant – I did not have any workplace weight restrictions in March 2007. I had modified duty, which meant no extension ladders , no sloped ground, and no
running. Further, I do not believe the Respondent was even aware of any of these restrictions when they made the decision not to hire me so none of these restrictions could have led to their conclusion that I could not have performed the job. I did not want the second job offered on 3/6/07 because it paid $5 per hour less (at the Commercial rate) than the job offered at SAPPI on March 5th.

Owner TT – It is true that Foreman UA did not feel the Complainant could do the work required on the SAPPI job; therefore, he looked for another job for the Complainant. The second job did pay $2.50-$3.00 per hour lower than SAPPI, which required pulling cable in a tray and lots of climbing and stretching.

10) (Investigator) A few weeks after the IRC, the Complainant met with the Investigator and asserted that he was mistaken at the IRC when he asserted that his medical restrictions on the day in question (3/5/07) included a prohibition on the use of “extension ladders.” The Complainant stated then that he did not believe that the extension ladder restriction was imposed until it was mentioned in a “M-1” (Workers’ Compensation) report, dated 4/10/08 (attached hereto as “Exhibit A”). However, during a series of subsequent calls to the Complainant’s medical provider (New England Foot & Ankle Specialists) it was confirmed that the extension ladder restriction (as well as the restrictions on uneven ground and running) had been in place since the Complainant had been fitted with an Arizona ankle brace, as noted in another M-1 WC report, dated 7/11/06 (Exhibit B).

V. ANALYSIS AND CONCLUSIONS:

1. 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.
2. The Maine Human Rights Act, 5 M.R.S.A. § 4572(1)(A), prohibits an employer from refusing to hire an individual because of “physical or mental disability.”
3. At the time in question, March 5, 2007, the Act defined “physical disability,” in part, as “any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness. . . .” 5 M.R.S.A. § 4553(7-A) (Supp. 2006). 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.

Records indicate that Complainant has degenerative disc disease at multiple levels from level L2/L3 down to L5/S1, which has been symptomatic since 1991. As such, Complainant has a “disability, infirmity [or] malformation . . . caused by bodily injury, accident, disease . . . environmental conditions or illness,” and has a protected “physical disability” under the MHRA.

4. The MHRA does not prohibit an employer from discharging or refusing to hire an individual with a physical or mental disability when the employer can show that the employee or applicant, “because of the physical or mental disability, is unable to perform the duties or to perform the duties in a manner that would not endanger the health or safety of the individual or others. . . .” 5 M.R.S.A. § 4573-A(1-B).

5. The defense requires an individualized assessment of the relationship between an employee or job applicant's physical or mental disability and the specific legitimate requirements of the job. See Higgins v. Maine C. R. Co., 471 A.2d 288, 290 (Me. 1984); Maine Human Rights Com. v. Canadian Pacific, Ltd., 458 A.2d 1225, 1234 (Me. 1983). The defense imposes upon the employer the burden of establishing that it had a factual basis to believe that, to a reasonable probability, the employee or job applicant's physical or mental disability renders him or her unable to perform the duties or to perform them in a manner that would not endanger the health or safety of the employee or job applicant or others. See Canadian Pacific, Ltd., 458 A.2d at 1234.  An employer cannot deny an employee or applicant an equal opportunity to obtain gainful employment on the mere possibility that a physical or mental disability might endanger health or safety.  See Id. 

6. In arriving at a recommendation the following facts are noted:

a. Respondent admits that it did not hire Complainant because it perceived that he would be unable to perform the job because of lifting limitations caused by his back injury.  This constitutes discrimination because of Complainant’s disability.  See Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 38 (1st Cir. 2000) (discrimination because of tardiness that flows directly from arthritis can be discrimination because of disability). 

b. Respondent summarily disqualified Complainant based upon its potentially outdated recollection of the Complainant’s prior medical restrictions and the fact that the job offered at SAPPI involved the same type of duties (pulling wires) that apparently caused the Complainant to file a Workers’ Compensation report in 1999. While it could certainly have been the case that the Complainant would have been deemed unable to perform the essential functions of the offered job after comparing the job’s essential duties to the Complainant’s fully disclosed work restrictions, this must be based upon an individualized (and contemporaneous) assessment of whether the Complainant was qualified at the time that the hiring decision is made.  Therefore, it is found that the Respondent did wrongfully disqualify the Complainant from placement on the job, without ever asking for current medical restrictions and comparing them to the essential functions of the job in question.

c.  As a part of his claim, 5 M.R.S.A. § 4572(1)(A) does not require Complainant to prove that he was capable of performing the job.  Rather, the burden rests with Respondent to prove, through an individualized assessment, that Complainant could not perform the job due to his disability.  See 5 M.R.S.A. § 4573-A(1-B); Maine Human Rights Com. v. Canadian Pacific, Ltd., 458 A.2d 1225, 1230, 1234 (Me. 1983).  Disability is thus treated the same as any other protected class under section 4572(1)(A), and Complainant’s burden of proof is the same as it would be, for example, in cases of race or sex discrimination.  In this regard, the Maine Act and its federal counterpart, the Americans with Disabilities Act, differ substantively. The ADA requires plaintiff to prove that he or she is “qualified,” meaning able to perform the “essential functions” of the job in question.  See 42 U.S.C. §12112(a) (prohibiting discrimination against a “qualified individual with a disability”) (emphasis added); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996) (allocating burden).  See also 5 M.R.S.A. § 4572(2) (prohibiting discrimination against a “a qualified individual with a disability”). 

d. Although two Law Court decisions have referenced a requirement under the Maine Act that a plaintiff prove that he or she is “qualified” and able to perform the essential functions of the job, see Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 14, 824 A.2d 48, 54 and Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, ¶ 9, 895 A.2d 309, 312, in both cases, the Law Court touched on the standards in passing and did not address the differences between sections 4572(1) and 4572(2).  The reference was also dicta in both cases and is not controlling.  In Doyle, the Law Court based its decision to affirm summary judgment on the plaintiff’s failure to establish that the reasons given for the termination of her probationary period were pretextual or irrelevant.  2003 ME 61, ¶ 18, 824 A.2d 48, 56.  The Court specifically noted that it was not addressing whether the plaintiff had established a prima-facie case of discrimination.  2003 ME 61, ¶ 16 n. 8, 824 A.2d 48, 54 n. 8.  In Whitney, the Court decided only a certified question concerning the scope of the definition of “physical or mental disability” under the Maine Act.  2006 ME 37, ¶ 1, 895 A.2d 309, 310.

e. Regardless, even if Complainant did have to prove that he was “qualified,” meaning that he was capable of performing the essential functions of the job, the use of ladders and Complainant’s ability to perform the lifting requirement implicate safety rather than mere ability.  In other words, any concern about Complainant’s ability to perform the job in light of his work restrictions is about the risk of Complainant injuring himself or others while performing the job tasks (e.g., aggravating his back condition while lifting or using extension ladders); there is no indication that Complainant otherwise lacked the ability to lift the cable or use the ladders.  When it comes to safety issues, the First Circuit Court of Appeals has held that the MHRA places the burden of proving the ability or inability to safely perform a job on Respondent, not on Complainant as part of showing that he is “qualified.”  Warren v. United Parcel Service, Inc., 518 F.3d 93, 99-100 (1st Cir. 2008).

f.  In sum, it is found that Respondent refused to hire Complainant because of his back disability.  Further, because Respondent failed to conduct an individualized assessment, it has not carried its burden of showing that it had a factual basis to believe that, to a reasonable probability, Complainant's physical disability rendered him unable to perform the duties of the position or to perform them in a manner that would not endanger the health or safety of the employee or job applicant or others.  See 5 M.R.S.A. § 4573-A(1-B); Canadian Pacific, Ltd., 458 A.2d at 1234.

VI.       RECOMMENDATION:

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

1. There are Reasonable Grounds to believe that the Respondent, [ ] failed to hire the Complainant[ ] due to disability discrimination; and
2. Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

 

Patricia E. Ryan                                                          Robert D. Beauchesne
Executive Director                                                      Field Investigator

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