Presque Isle woman says firing broke disability, whistle-blower laws

Posted May 18, 2011, at 5:21 p.m.
Last modified May 18, 2011, at 6:15 p.m.

PRESQUE ISLE — A local woman is suing the County of Aroostook and Northern Maine Development Commission, claiming she was discriminated against based on a disability and because she blew the whistle on illegal activity in the workplace.

Dena L. Winslow, 57, of Presque Isle filed suit against the County and NMDC in U.S. District Court in Bangor last month. She has requested a jury trial and is seeking compensatory damages, back pay, reinstatement and or front pay, reasonable attorneys’ fees and expenses, and interest and costs as provided by law.

Winslow, who is represented by attorney Arthur J. Grief of Bangor, was employed as executive director of the Local Workforce Investment Board for Aroostook and Washington counties from April 2008 to February 2010. The LWIB is charged with creating programs designed to increase the employment, retention and earnings of participants in the programs. NMDC works to enhance economic development in the region.

According to the lawsuit, federal law declares that management and staffing of the LWIB is exclusively delegated to the board of directors of the LWIB. The County of Aroostook at first and then NMDC beginning in February 2010 served only as the fiscal agent of LWIB, according to the lawsuit, and had no actual legal control over the staff of LWIB.

After Winslow was hired in 2008, she underwent four separate orthopedic surgeries, including a cervical spinal fusion, right and left rotator cuff repairs, and a right hip repair. Grief said these orthopedic conditions made Winslow disabled under the Maine Human Rights Act and the Americans With Disabilities Act.

Winslow said in a written complaint to the Maine Human Rights Commission and the Equal Employment Opportunity Commission that Doug Beaulieu, the Aroostook County administrator, made “repeated anti-disability comments” regarding her left rotator cuff surgery, so she delayed scheduling the right hip surgery “for fear of losing my job.” Winslow also claims that Beaulieu told her if she was not back from her spinal fusion surgery in three weeks, he “would not hold” her job for her. She said that when she returned from the spinal fusion surgery, he wouldn’t allow her any accommodations such as a driver or secretarial assistance to help with typing. And she said that Beaulieu was “hostile” about her need for time off before and after her rotator cuff repair surgeries.

Winslow ultimately had her right hip repaired on Feb. 4, 2010, and was told that day by Beaulieu that her position with LWIB had been terminated and that her last day would be Feb. 12, 2010, according to her MHRC complaint.

Grief maintains that The County refused to accommodate Winslow’s disability and “purported to terminate her employment” in direct violation of the MHRA and the ADA. Winslow received a right to sue letter from the Maine Human Rights Commission in January 2011.

Peter Marquese of Waterville, attorney for The County, said Wednesday that Aroostook administrators never fired Winslow and they never rehired anyone to fill her position. Once NMDC became the fiscal agent for LWIB, he said, it was that organization that sought applicants to fill the executive director position under its auspices. Four people, including Winslow, applied, according to Marquese. Another applicant ultimately was chosen by NMDC for the position, but The County was never involved in the application or hiring process, he said.

The whistleblowing allegation stems from an incident in November 2009, when Winslow wrote that an audit by the federal Department of Labor revealed that Beaulieu’s attempt to act as her supervisor was unlawful, and that only the board of the LWIB,which consisted mainly of people from the private sector, had the authority to supervise, hire, and fire her and subordinate employees. Winslow said she made LWIB board members aware of the findings of the audit and passed out copies of the federal law at a meeting in January 2010. Winslow said in her written statement to the MHRC that Beaulieu “became visibly upset at that meeting.”

“From the point of my whistleblowing forward, it became apparent that my job, already in jeopardy because of my many orthopedic surgeries, was now further endangered,” she wrote.

Marquese also denied that Winslow “blew the whistle on anything.”

“The [Department of Labor] audit pointed out its findings, and corrections were made,” he said.

Winslow added that Beaulieu and Robert Clark, who was executive director of NMDC and also a director of the LWIB board, began an attempt in November 2009 to transfer the pass-through funding responsibilities for the LWIB from the County of Aroostook to NMDC. Grief said that as a result of that action, The County and NMDC began to act as Winslow’s joint employer from that day forward.

Winslow said Clark was aware of her multiple surgeries and of “Beaulieu’s displeasure with those multiple orthopedic surgeries.”

“He was also aware of my whistleblowing beginning in November of 2009,” she wrote in the complaint.

Winslow said she met with Clark, who was then acting in his role as executive director of the NMDC, in December 2009. Winslow claims Clark told her he was not going to hire her once NMDC became the pass-through fiscal agent. Winslow said he did not give her a reason, and she believes it was because of her surgeries and because she informed the LWIB board members that only they had the power to hire and fire staff.

She said Clark “vigorously disagreed” with the concept that NMDC could not hire and fire the executive director for the LWIB.

She said she was scheduled for an interview for the LWIB executive director position with the NMDC when it assumed the pass-through fiscal agent role for the LWIB. That interview took less than 10 minutes, she said.

Furthermore, Winslow said she was given a job description for a position she already hhad eld for two years, which suggested she would be required to lift up to 75 pounds.

“Since I had filled this position for almost two years, I knew that this was patently wrong and that the job responsibilities would never involve this kind of lifting,” she wrote. “I believe the job description was designed by NMDC to find yet another reason for not hiring me, beyond my record of disability and my whistleblowing activities with which NMDC’s Executive Director Robert Clark was so displeased.”

She did not get the job. Grief said NMDC knew of her disability and “intentionally refused to continue” her employment with the LWIB because of it and refused to continue her employment with LWIB in retaliation for her whistleblowing.

Clark on Tuesday referred comment to Melinda Caterine of Portland, the attorney for NMDC. She said Wednesday she could not comment on pending litigation. Grief said all parties have accepted the complaints and he expects the case to go to trial next spring. Marquese said Wednesday he expects to file a motion for summary judgment and to have the case against The County thrown out before it goes to trial.

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