CT Dismisses Case of Potentially Fatal Work Schedule

A federal appeals court in Maine has upheld the dismissal of a lawsuit filed by a department store clerk with type 1 diabetes who quit because she feared her erratic work schedule could actually kill her.

This is yet another example of how difficult it is for disabled employees to prevail in a lawsuit filed under the Americans with Disabilities Act.

Kohl’s Department Store adopted a new schedule in 2010 that required Pamela Manning to work so-called swing shifts where a night shift is followed by an early shift the next day. Manning told Kohl’s the erratic schedule was endangering her health.  At Kohl’s request, Manning submitted a letter from her endocrinologist stating that Manning’s health was suffering and she needed a predictable day shift to better manage the disease.

When Kohl’s refused Manning’s request for a steady and fixed shift, Manning walked away from the full-time job that she had held for approximately four years.  The U.S. Equal Opportunity Commission filed a lawsuit against Kohl’s for violating its duty under the Americans with Disabilities Act for failing to provide Manning with reasonable accommodations so she could continue to work

In a split decision, a three-judge panel of the U.S. Court of Appeals for the First Circuit in Maine acknowledged Kohl’s refusal to provide Manning with a set shift but said it could not “ignore” the fact that Kohl’s had offered to discuss “alternative reasonable accommodations.”  The court notes that its record is devoid of any “facts” regarding other accommodation Kohl’s was prepared to offer but blames this on the EEOC for telling Manning not to continue discussions with Kohl’s.

The EEOC claimed that Kohl’s effort consisted of disingenuous “empty gestures”  and the dissent accused Kohl’s of engaging in a “negotiating tactic that is unfair to disabled employees who reasonably believe that they confront imminent serious harm if an accommodation is not provided.”

In a meeting with store officials, Manning offered to work a set day or mid-day shift, even on weekends.  After Kohl’s rejected her offer, Manning told them she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours.  As Manning was cleaning out her locker, a store official asked her to consider undefined alternative accommodations. Ten days later, a store official telephoned Manning and suggested she consider alternative accommodations for part-time and full-time work. However, the official said she would have consult with Kohl’s corporate office about any specifics.  Kohl’s terminated Manning’s employment a week later

The majority said Kohl’s had made an “earnest attempt” to discuss other potential accommodations with Manning and that  Manning had failed her duty to engage in good faith discussions with Kohl’s.

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Kidney Donor: Thanks and You’re Fired

Deborah Stevens said she was bullied and fired after donating a kidney so that her boss could get a kidney transplant.

In a complaint filed this week with the New York Division of Human Rights. Stevens says she donated a kidney in August 2011 through the National Kidney Registry on behalf of her boss, Jacqueline Brucia, a comptroller at Atlantic Automotive Group, Inc., which operates car dealerships in New York.  The donation allowed Brucia to get a kidney transplant.

Following the surgery and four weeks of recovery, Stevens, who was Brucia’s administrative assistant, returned to work on Sept. 6, 2011. But the kidney donor said she continued to suffer various intestinal, digestive and neurological impacts as a result of her surgery.

On her third day back at work after her surgery, Stevens says she left work early because she was feeling ill.  She says Brucia, who had not even returned to the office yet after her kidney implant, called Stevens from her home and said – “You can’t come and go as you please.”

According to Stevens’ complaint, Brucia’s treatment of her “changed dramatically” after Brucia returned to the office –  “Brucia was routinely curt and dismissive with Stevens and was unnecessarily critical of her work performance.”

At one point, Brucia allegedly told Stevens: “Don’t expect to be treated special because of what you did for me.”

Stevens said Brucia bullied her, berated and humiliated her in front of others and reduced her duties. Brucia even allegedly refused to let Stevens leave her desk, exascerbating Stevens’ health problems in the aftermath of her surgery. When Brucia complained of her health condition, she says Brucia responded, “I don’t care; sounds like a personal problem.”

Stevens finally complained to the company’s human resources department, which resulted in her transfer to an inferior position at a location 50 miles away.

On March 5, 2012, Stevens’ attorney sent the company a letter charging that Stevens had been subjected to disability discrimination in violation of federal and state disability laws.  According to her complaint, Stevens’ was fired on April 11, 2012 “purportedly for performance reasons, despite having never been placed on any type of performance improvement plan.”

Stevens told CBS News that the only thanks she got from Brucia for her left kidney was an email stating: “Thanks more than I can ever say.”

In a statement, the Atlantic Auto Group said, “It is unfortunate that one employee has used her own generous act to make up a groundless claim. Atlantic Auto treated her appropriately and acted honorably and fairly, at every turn.”