Judge: Woman has Human Rights Act case

Posted March 31, 2009, at 9:01 p.m.
Last modified Feb. 13, 2011, at 10:43 a.m.

BANGOR, Maine — An Owls Head woman who claims that Bank of America illegally fired her nearly three years ago while she was recovering from breast cancer surgery will get her day in court.

A federal magistrate judge recommended last month that a motion for summary judgment filed by Bank of America be denied. The bank maintained that Holly A. Swift was fired for job abandonment.

U.S. Magistrate Judge Margaret Kravchuk found in a 36-page decision issued on March 16 that Swift, 53, had “made a sufficient showing to support a finding that the physical and mental consequences of her [breast cancer] constituted disabilities protected by the Maine Human Rights Act.”

Kravchuk’s decision is subject to review by U.S. District Judge John Woodcock.

“Holly is very grateful that her good reputation has been restored by the court recognizing her as an ‘outstanding employee’ with an ‘exemplary performance record’ during her seven years with the bank,” Swift’s attorney, David Webbert of Augusta, said last week. “She loved her job and never wanted a lawsuit, but only to re-turn to work as soon as she recovered from her surgery.”

Efforts to reach attorneys for Bank of America were unsuccessful Tuesday.

Swift began working in 1999 for MBNA in Camden, according to court documents. She was working as a sales associate in March 2006, a few months after the company was purchased by Bank of America, when she was diagnosed with breast cancer. Her physicians recommended a double mastectomy, which was performed in mid-April 2006, followed by reconstructive breast surgery in August 2006.

At the end of June, a nurse who worked for MBNA requested that Swift return to work and take more short-term disability leave in August. Swift, according to Kravchuk’s decision, said that she was still experiencing pain and was not ready to return to work. The MBNA nurse told Swift that the documentation she had provided from her doctors was insufficient and placed her on unpaid leave on July 2. Two weeks later, the company sent her a letter saying she had been fired for “job abandonment.”

Webbert filed the lawsuit on Jan. 31, 2008, in U.S. District Court in Bangor claiming that Bank of America violated the Maine law that prevents employers from discriminating on the basis of disability. The case was filed in federal court because Bank of America is based in Delaware. Lawsuits involving litigants in a different state often are dealt with in federal court.

Swift’s lawsuit is seeking compensatory and punitive damages, back pay for lost wages and benefits, attorney’s fees and an injunction ordering Bank of America to provide training for employees so that similar discrimination is less likely to happen again.

So far, Bank of America has not objected to Kravchuk’s decision. If the bank’s attorneys do not object before the end of the week, it is highly likely Woodcock would endorse the magistrate judge’s recommended decision.

A trial date is not expected to be set until after Woodcock issues his decision.

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