by Dinita L. James, Gonzalez Law, LLC
It isn’t the best time for Sullivan Motor Co., a Mesa used-car dealership, to end up before the Arizona Civil Rights Division (ACRD) of the Arizona Attorney General’s (AG) Office on a charge that its treatment of a former salesman with terminal cancer violated the Arizona Civil Rights Act (ACRA).
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Given that workplace treatment of the ill and injured has become a hot-button issue in Arizona thanks to publicity about the state’s behavior toward some of its own workers, it isn’t surprising that Sullivan was unable to mediate a settlement with ACRD and now finds itself defending a lawsuit brought by the AG’s Office in Maricopa Superior Court.
Public Scrutiny
A scandal involving employees at Adobe Mountain School, one of four Arizona secondary schools operated by the Arizona Department of Juvenile Corrections (DJC), has been in the news frequently since August. First, the school fired an award-winning teacher with invasive breast cancer, who was unable to return to work after her unpaid leave expired because she had contracted a secondary staph infection. The teacher’s firing also terminated her medical benefits. “They see my case as a financial burden,” she told the Arizona Republic.
In the first day after the report on the teacher’s firing appeared, Governor Doug Ducey received at least 22 e-mails (which were copied to the newspaper) demanding that he reverse the decision of the DJC director, Dona Marie Markley. “It’s bad enough she has to battle breast cancer, but to be treated badly by her employer is unconscionable,” one e-mail writer said. “Ultimately—as the state is her employer—the buck stops with you.” Ducey responded quickly to the public outcry and reinstated the teacher.
Three weeks later, another Adobe Mountain employee, this one injured on the job, went to the newspaper to complain about being fired when he was unable to return to work after his leave ran out. A week after the report about the second worker’s firing, Ducey fired Markley and announced that at least six other former employees who worked for DJC under her would be offered reinstatement.
The painful episode for the governor and the state isn’t over, however. Markley has now given notice that she will sue if she isn’t paid severance on the $750,000 in salary she would have earned. She is claiming that all of her decisions to fire employees were “based on the advice and recommendations of the Arizona Department of Administration Human Resources [Division] and, in many cases, the Arizona [AG’s] Office.”
Private-Sector Employer in Court
Less than 2 weeks after Markley’s ouster, the AG’s Office was filing suit against Sullivan based on allegations very similar to those that surfaced at Adobe Mountain. According to the suit, “Mark” was in his second stint of employment at Sullivan as a commission-only salesman when he was diagnosed in May 2014 with Stage IV metastatic lung cancer, papillary thyroid cancer, and chronic obstructive pulmonary disease with emphysema. He told the general manager at Sullivan about his health problems in June 2014 but continued to work his normal schedule.
By February 2015, however, Mark had submitted a letter from his doctor stating that he needed to work a modified schedule of no more than 6 to 8 hours per day and no more than 4 days a week. Sullivan agreed to the modified schedule. In May 2015, Mark developed skin cancer and told his boss that he needed to take 2 weeks off for treatment.
When Mark returned from the 2 weeks of leave, Sullivan told him it could no longer allow him to work the modified schedule. According to the AG’s lawsuit, the general manager told Mark that one of his coworkers had requested a modified schedule because of a cancer diagnosis and Sullivan couldn’t accommodate both of them. The manager sent Mark home that day.
Mark filed a claim for unemployment benefits, and Sullivan responded that he hadn’t been discharged. When he contacted Sullivan, an HR manager told him that if he applied for it, he could have 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) and keep his medical benefits, but he would have to return to work full-time once the leave expired.
Mark responded that he didn’t want FMLA leave; he wanted to work with a reduced-hours schedule. The HR manager then gave him a letter stating his employment was terminated effective the date he had been sent home in May.
The AG’s lawsuit alleges that Sullivan denied Mark a reasonable accommodation, denied him employment opportunities based on his need for a reasonable accommodation, and discriminated against and discharged him on the basis of a disability in violation of the ACRA. The AG’s spokeswoman said that the lawsuit was filed only after an attempt to resolve the case through mediation failed. Sullivan has not yet responded to the lawsuit.
Don’t Kick Workers When They’re Down
While the state’s recent bad publicity may have influenced ACRD’s decision to prosecute this case against a private-sector employer, its federal counterpart, the Equal Employment Opportunity Commission (EEOC), has for several years targeted companies that kick workers while they’re down with illness or injury.
Enforcement agencies interpret the ACRA and the Americans with Disabilities Act (ADA) to protect ill or injured workers generally. Here are some tips on how to avoid liability:
- Beware of inflexible leave policies. It’s the EEOC’s position that additional leave may be a necessary accommodation under the ADA.
- Don’t insist that an employee whose doctor authorizes him to perform some work must instead take unpaid leave.
- Don’t take away an accommodation you’ve already granted and expect anyone to believe that it somehow later became an unreasonable accommodation.
- Exercise extreme caution and seek the advice of counsel before firing an ill or injured employee if your reason has anything at all to do with the illness or injury and its effects on his attendance or performance. That’s good advice even if you believe your reason is wholly unrelated to the employee’s illness or injury.
Not only are state and federal enforcement agencies on the alert to prosecute such claims, but the public is very attuned to any action by an employer that appears to disadvantage sick or injured workers. Or, as one of the governor’s e-mail correspondents put it, “being treated like an animal by the state and basically being sent home to die.” If a claim like the Adobe Mountain teacher’s or Mark’s gets to court, folks like that e-mail writer will be on the jury.
Dinita L. James, the partner in charge of the Phoenix office of Gonzalez Saggio & Harlan LLP, is the editor of Arizona Employment Law Letter.You can reach her at dinita_james@gshllp.com or 602-840-3301.