AUGUSTA — A human rights panel on Monday went against the recommendation of its own investigator and concluded that a nurse practitioner at a Newport family health center was not the victim of disability discrimination.
In a second, separate case, the panel supported a claim of disability discrimination in employment made by a man who worked at Dollar Tree in Skowhegan.
Jennifer Bagley of Newport, a family nurse practitioner who worked for Sebasticook Family Doctors health center in Newport, claimed she was forced to take unpaid leave, required to take an unlawful medical examination, and constructively discharged.
The commission disagreed voting 2-1 at its meeting at the Senator Inn in Augusta to find “no reasonable grounds to believe discrimination occurred.”
Bagley worked for the health center for three years until July 20, 2015, and spent much of that time as a part-time employee — 35 hours a week — because of fatigue and neuropathy from a double mastectomy and chemotherapy and then spent time on medical leave following the discovery of a tumor on the nerve between the inner ear and the brain. It was treated and her doctor cleared her to return to work.
Bagley was represented by attorney John Gause, who previously served as commission counsel. He asked the panel to uphold the recommendation of the investigator. He also said Bagley had no choice except to resign because she supplied 75 percent of the household income and could not wait the 53 days without pay for the scheduled neuropsychological exam.
Jennifer Corey, an investigator with the commission, concluded in her written report that the health center put Bagley “out of work and kept her there unpaid until she underwent a neurocognitive evaluation, and did so because of her record of having (cancer) and treatment for it. Respondent’s decisions were made because of complainant’s disability history, not because of her objective performance at the time she was put out of work.”
Attorney Robert Bower, who represented the health center, told the commission on Monday that sending Bagley for a neuropsychological exam was reasonable since they had reasons to be concerned about Bagley’s performance.
“I struggle with understanding why that’s illegal,” Commissioner John Norman told the investigator on Monday. He said he thought any employer has obligation to do it “when the employee is in a critical position of dealing with other people’s health and well-being.”
Corey said, “They could have discussed other reasonable accommodations. What was unreasonable was the request and the style of request.”
Norman and Commissioner Deborah Whitworth voted to find no reasonable grounds to believe discrimination occurred; Commissioner Frederick Oettinger voted to support Bagley’s claims.
After the vote, Bower said he was “gratified by the commission’s decision that Sebasticook Family Doctors, now known as Hometown Health Center, did not discriminate against Jennifer Bagley.”
Gause said afterward that Bagley’s next step has yet to be decided. “We’re going to think about what happened,” he said.
Bagley, 44, was in tears after the vote. She said she is a six-year survivor of cancer and after leaving Sebasticook Family Doctors opened her own medical practice, Family Circles Health Care in Hartland.
“I have 1,200 patients, two other nurse practitioners that I hired and a staff of 10,” she said.
In another case heard Monday, Lloyd Mudie of Madison won unanimous support from the three-member panel for his charge that he was a victim of discrimination by his employer, Dollar Tree, in Skowhegan.
Commission findings are not law, but may become grounds for lawsuits.
Mudie, 46, worked there as an assistant store manager from October 2015, and maintained he was a victim of illegal discrimination which occurred Jan. 28, 2016.
Dollar Tree, which was represented by at Monday’s hearing by attorney Eric Uhl, denied the allegations.
Commission investigator Angela Tizon recommended a finding of reasonable ground to believe Dollar Tree discriminated against Mudie “by refusing him a reasonable accommodation and by refusing to let him return to work from unpaid leave.”
Mudie was discharged on Nov. 18, 2016.
Attorney Lisa Butler, who represented Mudie at the hearing, told the panel, “We submit (Mudie) had informed Dollar Tree of his chronic back pain and injury many years ago for which he underwent three surgeries.”
She said a doctor’s note restricted Mudie to lifting no more than 20 pounds and from sitting or standing for more than an hour at a time.
Dollar Tree denied discriminating against Mudie and said that Mudie “failed to produce the necessary medical documentation,” so Dollar Tree “could not return him to work as it could not evaluate whether he would be able to perform the essential functions of his position with or without accommodation,” according to the report.
Tizon concluded, “(Dollar Tree’s) insistence that it needed to know how long (Mudie’s) restrictions were needed tends to suggest some discriminatory animus. It appears from the record that (Dollar Tree) did not want to deal with the restrictions indefinitely, and continued to ask for more information in order to avoid having to return (Mudie) to work.”
At the hearing, Uhl said Dollar Tree was ready and willing to return Mudie to work but needed clarification. “It’s the employee’s burden to get that information,” he said.
After the hearing, Mudie said, “I’m very happy” with the vote. He also indicated he is not currently working.
Now the case moves into a conciliation phase.
Butler said afterward, “It seems to me the commission understands the importance of an employer making genuine efforts to understand what Mr. Mudie needs, and they decided the employer had not made such efforts in this case.”
Betty Adams — 621-5631
Twitter: @betadams
Send questions/comments to the editors.
Comments are no longer available on this story