Panel: EMMC discriminated against man

Posted Dec. 11, 2008, at 12:52 a.m.

AUGUSTA, Maine — The Maine Human Rights Commission found Monday that a Hermon man’s employer subjected him to unlawful disability discrimination.

In a unanimous vote, the commission at its regular monthly meeting determined that Eastern Maine Medical Center in Bangor had subjected Everett Buzzell, 48, to unlawful discrimination owing to mental health conditions when training duties were eliminated from his job.

At the same time, the commission said there were no reasonable grounds to believe that Buzzell was “constructively discharged,” meaning he was not compelled to resign because working conditions were intolerable.

Portland attorney Chad Hansen represented Buzzell. Attorney Anne-Marie Storey represented the hospital.

Buzzell was hired in 1986 to work in the hospital’s housekeeping department as a weekend sanitation control attendant, or garbage collector, according to the commission’s affidavit.

Buzzell assumed the position of floor machine operator, or janitor, in 1988.

In 1992, Buzzell requested a job change back to sanitation. In 1994 he was promoted to the “special projects” operation within the housekeeping department. He was responsible for refinishing and cleaning floors, carpets and walls, moving furniture and washing windows. He also was responsible for “charge and training” duties in which he trained other personnel.

In January 2005, Buzzell got a new position in “equipment maintenance” also within housekeeping.

He returned to his special projects position in October 2006.

Buzzell said he requested a leave of absence on June 13, 2006, for an “anxiety nervous disorder,” which dated back to February 1999. He was permitted to take intermittent leaves.

Buzzell said that after he disclosed the existence of a mental disability to his employer in 2006 and requested Family Medical Leave Act leave, the hospital took away his training duties, demoted him to a lower pay grade and froze his pay.

When he returned from intermittent leaves in early January 2007, his employer refused to allow him to return to his former job, including his training duties, and the exclusions continued throughout his employment.

The employer told Buzzell he was not being returned to his regular duties out of concern that the additional stress associated with those duties would not be in his best interest and that the hospital did not want to place him in a problematic situation.

Hansen argued successfully that the hospital’s position in this case was illegal.

Buzzell said his medical providers said there was no basis for the exclusion and provided notes indicating he could return to performing all of the job duties to which he was assigned before going on leave.

The hospital replied that the job duties to which Buzzell referred made up only a small part of his responsibilities and that the peripheral duties were removed because of Buzzell’s “unpredictable attitude and negative attitude,” according to the investigation report.

Buzzell claimed that his supervisors harassed and unfairly disciplined him until he had no alternative except to leave his job, constituting a “constructive discharge,” although technically he is still on unpaid administrative leave. The commission found the hospital’s action did not constitute constructive discharge.

Hansen said after the decision Monday that his client is going through a conciliation process with the commission. If the parties are not able to work something out, “we will try to sort it out,” Hansen said, adding that he would not “take anything off the table, including money damages or trying to prevent something like this from happening again.” “His job performance was good, and he did good work,” Hansen said.

The two-year statute of limitations on the case runs out Jan. 7, 2009, the anniversary of Buzzell’s return to work from his leaves.

“That’s the drop dead date for filing in court,” Hansen said.

gchappell@bangordailynews.net

236-4598

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