Man accused of ‘barking like a dog’ at supervisor may have been victim of discrimination

Posted Jan. 17, 2014, at 4:05 p.m.
Last modified Jan. 17, 2014, at 9:55 p.m.

AUGUSTA, Maine — A Skowhegan man who was dismissed after working for Pan Am Railways Inc. for 15 years claims that the company demanded he see a pricey brain specialist but refused to pay, according to a complaint filed with the Maine Human Rights Commission.

David Crockett, who worked as a carman for the railway company, said his employer removed him from service in March 2012 and refused to return him to work in violation of the Maine Human Rights Act. An investigator from the state commission recommends commissioners find his claim has reasonable grounds when the panel meets on Jan. 27.

Pan Am denies Crockett’s position, instead reporting that the company removed him from service after issues were raised about his behavior over a period of months.

According to investigator Victoria Ternig’s report, Crockett was hired in 1997 for a job that required him to perform heavy work, problem solve, stay alert and follow written and oral directions. He told Ternig that he didn’t have any problems until his supervisor changed in January 2012. Crockett said that in the next month, his boss ordered him to “sign off” on railroad cars that had not been inspected, which he refused to do for fear of losing his license.

Crockett claimed that in March, his supervisor told other people at the workplace that Crockett had “barked at him like a dog” in an alleged interaction that was witnessed by no one. After, Pan Am required Crockett be examined by a doctor at Concentra to see if he was fit for duty. The doctor he saw would not clear him to return for work without further evaluation, including wanting Crockett to see a psychiatrist, he told the investigator. Even though his own medical providers cleared him for work, Pan Am refused to reinstate him or pay for a psychiatrist, Crockett said.

A nurse from Concentra told Crockett that he needed to see a brain specialist for 12-18 sessions, at $150 per hour, money which he said he didn’t have.

But Pan Am, in its response to Crockett’s allegations, told the investigator that during the year leading up to his dismissal from service, other employees and his supervisor had concerns about his behavior. He also was disciplined twice in 2011, once for excessive absenteeism and once for “failing to remove a blue flag protection on a derail.” In July 2011, an internal memorandum from one of his supervisors detailed concerns about Crockett’s difficulty concentrating and staying focused. The supervisor also noted the employee’s “odd behavior,” including the alleged dog barking incident and erratic driving.

In Ternig’s analysis, she found that while Pan Am certainly could require that its employee be examined by an appropriate health care professional, the company did not meet its obligation to provide and pay for that treatment.

“The employer cannot shift the burden onto the employee to obtain medical evidence of his or her ability to work safely, nor can the employer shift the cost of the medical evaluation onto the employee,” she wrote. “Disability discrimination based on unlawful medical inquiries is found.”

However, the investigator did not find reasonable grounds to believe Crockett’s claim that the company removed him from service and refused to return him to work in retaliation because he called attention to bad practices according to the Whistleblowers’ Protection Act.

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