In death, fired nurse aids rights of workers under the ADA - Sept 2011

Under court decree, firm that let her go must pay, institute training.

{photo: Anne Whitledge, who died last August from brain cancer, with her daughter, Mariah. Maxim Healthcare Services, the health care giant that fired her rather make accommodations for her disability, must send a letter of condolences to her survivors, along with a check for $160,000}

Anne Whitledge will never get her job back at Maxim Healthcare Services -- or another paycheck or a note of thanks for her service.

The St. Paul nurse died of brain cancer last year at 43.

But under a federal court settlement announced this week, the Maryland health care corporation that fired Whitledge in 2009 will send a letter of condolence to her survivors -- along with a check for $160,000.

The closely watched lawsuit that produced Wednesday's settlement marks an important test of the 1990 Americans With Disabilities Act (ADA) and is likely to change the way employers treat ailing employees, attorneys said Thursday.

"This decision demonstrates the [government's] commitment to aggressive enforcement of the ADA,'' said Doug Christensen, chair of the labor-employment group at the Dorsey & Whitney law firm in Minneapolis. "It shows employers the importance of engaging in an individualized, interactive process with employees who are potentially disabled."

Celeste Culberth, the attorney representing Whitledge's estate, said the case will "get the word out to employers that people who have cancer and other disabilities are capable of working. Regular folks can have confidence that the law protects them," she said.

A consent decree signed by U.S. District Judge Joan Erickson requires Maxim to post policies informing employees of their rights under federal law and develop new staff training. It also enjoins the company from retaliating against employees who assert their rights or from refusing to discuss reasonable accommodations with employees when they seek to return to work from medical leaves.

In court filings, Maxim said the firing was legally justified because Whitledge was unable to perform her job and because she presented a "direct threat" to the health and safety of herself or others. Maxim's attorneys declined to discuss details of the case or explain how Whitledge posed a threat.

The settlement also came as a relief to those close to Whitledge.

Larry Williams, the executor of Whitledge's estate and the guardian of her 11-year-old daughter, Mariah, spoke fondly of the woman "who always wanted to help people.'' He said the fight for the settlement "would have meant the world to Anne.''

Williams, now of Breezy Point, Minn., was a patrol partner of Whitledge when they worked as New Brighton police officers. After Whitledge retired due to a medical disability from a squad car accident about 12 years ago, she decided to enroll in nursing school because it was her nature to aid people in need, Williams said.

"Anne's attitude was all about giving and forgiving,'' said Williams, now retired. "She was a fighter, and she tried to live as normal a life as possible at the end.''

More cases

The ADA requires employers to make reasonable accommodations so a disabled individual can continue working. In Minnesota, the state Human Rights Act offers similar protections.

In 2010, 978 cancer patients nationwide filed complaints of wrongful termination and other types of discrimination, up from 434 complaints in 2000, according to the U.S. Equal Employment Opportunity Commission (EEOC).

While other cancer patients have used the ADA to sue over alleged discrimination, many of those lawsuits failed because the courts didn't always treat cancer as a disability.

Congress responded to complaints in 2008 by revamping the ADA, changing the law to make it easier for people to prove they are disabled.

Whitledge's case is one of three discrimination cases involving cancer patients that have been brought by the EEOC since the ADA amendments were enacted. Disability advocates have watched the cases to see how the courts respond.

Eight-week leave

Friends say Whitledge wanted to keep working after undergoing treatment for brain cancer. But Maxim fired her in February 2009, according to court records. Eight months later, her husband died of a heart attack. Her orphaned 10-year-old daughter was left without any life insurance money because her parents' policies had been through Maxim.

After leaving the New Brighton police and training to be a nurse, Whitledge was hired in 2007 as a nursing director for Maxim, a national company with more than $1.3 billion in revenues and 35,000 employees, according to a recent Dun & Bradstreet report. The company, which has 360 offices in the United States, provides nurses and home health care services in Minnesota, and runs hundreds of flu shot clinics.

In December 2008, Whitledge took an eight-week medical leave, according to EEOC records. When she tried to return to her job in February 2009, she was told she needed a clearance note from her doctor. Her doctor provided several notes saying Whitledge could work full time and needed only occasional days off for treatment, EEOC rcords show.

"Subsequently, I tried several times to speak to [Maxim's] decisionmakers about when I would be able to return to work," Whitledge wrote in her complaint to the EEOC. "The decisionmakers would not take my calls, so I left messages."

# Source: StarTribune Article by: DAN BROWNING and PAUL McENROE
Staff writer Lora Pabst contributed to this report
September 22, 2011
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