June 23, 2018
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31-year Friendship child care worker claims hearing loss led to firing

By Stephen Betts, BDN Staff

FRIENDSHIP, Maine — A Friendship woman who worked 31 years at a local nursery school claims she was fired after the Maine Department of Human Services refused to relicense the facility with her as an employee because of her hearing loss.

In response, Rosemary S. Kelley is suing the Maine Department of Health and Human Services’ division of licensing and regulatory services, and DHHS Commissioner Mary Mayhew.

The federal lawsuit filed in U.S. District Court in Portland on Dec. 21 argues that the state’s actions violated the Maine Human Rights Act, the Americans with Disabilities Act, and the federal Rehabilitation Act.

“It [has] been the worst nightmare of her life to be told she was unsafe for the children she loved and to be fired,” the lawsuit states.

Kelley is seeking compensation for the loss of her job, civil damages for the state’s actions, and attorney and legal fees.

The lawsuit notes that Kelley has had a hearing loss since childhood and has worn hearing aids.

Kelley had worked for 31 years at the Sonshine Nursery School in Friendship as a teacher’s assistant until December 2010 when she was terminated.

She is represented by attorney M. Elizabeth Gallie of the Maine Center on Deafness from Portland.

“My client’s motivation for suing is twofold. She does not want what happened to her to happen to anyone else. She would like the State of Maine’s Division of Licensing and Regulatory Services to develop rules and policies so that individuals with disabilities are properly assessed and not assessed based on myths and stereotypes,” Gallie said Monday. “Also, working with children was her life. She would like to be able to work with children again and be counted in the staff to child ratio so that she would have a good chance of being re-employed in Maine.”

The lawsuit states that in September 2010, an employee of the state’s division of licensing and regulatory services conducted an inspection of the nursery school for renewal of its license. The lawsuit states that the inspector, Brian McAuliffe, became concerned about Kelley’s ability to effectively supervise children because of her hearing loss.

Kelley claims in the lawsuit that McAuliffe did not voice his concerns to her, did not have expertise in hearing loss, nor did he ask for information from her audiologist. The Friendship woman said she noticed McAuliffe observing her and asked him if there was a problem and he said no.

There are no state regulations that require child care staff to be able to hear, the lawsuit states.

State licensing regulations require that there be one adult present for every 12 children in a nursery school. The classroom where Kelley worked had two adults, including her, for 13 children.

The state renewed the Sonshine school’s license but with the condition that it needed to correct the staff-child ratio since it could not count Kelley as a staff member. McAuliffe sent an email to his supervisor in October, stating that unless another staff member is available, licensing action will be taken because the school was failing to meet the required ratio, the lawsuit states.

The nursery school board chairman informed Kelley that she was being fired because the state had notified the school that it could not count Kelley as a staff member in order to meet the required staff-child ratio because of her hearing loss.

Kelley asked the school to give her a chance to get new hearing aids but she was refused because the school was concerned about its license, according to the lawsuit.

Kelley contacted the state agency multiple times in December but was given no options nor advice on how she could continue to work for the school. Gallie said the lawsuit is against the state and not her former employer because it was the state’s action that led to her losing her job.

Kelly Turner, an assistant attorney general who represents the state in the lawsuit, said the state has no comment on pending litigation. She pointed out, however, that the Maine Human Rights Commission ruled earlier this year that there were no reasonable grounds to find that there had been unlawful discrimination.

“Obviously we agree with that decision,” Turner said.

Kelley has experienced and continues to experience significant financial loss, mental anguish and emotional stress as a direct result of the state’s action, the lawsuit stated.

Gallie said she has not seen a case like this. The Center on Deafness serves and advocates for people who have hearing problems or are deaf.

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