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Allen M., Esq.
Allen M., Esq., Attorney
Category: Legal
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Experience:  Lawyer and legal specialist.
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I was employed as the nurse practitioner in a rural clinic,

Customer Question

I was employed as the nurse practitioner in a rural clinic, associated with the Baker County Medical Services for 11.5 months. Before I accepted the position, I told the CEO and CFO that I felt I needed to tell them, for moral and ethical reasons, to tell them I had Primary Progressive Multiple Sclerosis, and that at some point, my balance would become worse. They did not feel it was going to be a problem, because I was ok at that time, and they could make adjustments at that time. They even agreed to pay for the health insurance, since that insurance paid for my Tecfidera. They called their pharmacist, who looked into it, and confirmed the cost. During that time I worked at the clinic, I had no complaints from any of my patients. I saw only Medicaid and uninsured patients. After 11 months, the clinic management was transferred from the CFO to the DON (who just happened to be married to the CEO). At that time, I noticed that there were unlicensed medical assistance being sent over to "watch to make sure the clinic was being run properly", but I noticed they seem to always be outside my patient room doors. I emailed my concerns about the new clinic director not being board certified in internal medicine, and that I felt the people being sent over were spying on me, not doing what I was told they were doing. At that time, I got a letter of reprimand from my new medical director for not doing Pap smears, although there had been no Pap smears requested. I was not allowed to respond or see any records that backed up this write up, and when I asked questions, the DON (and yes, I was given this reprimand in a room with an open door and three other people in the room), got upset, stood up and told me to "just sign it, I have a dentist appointment". I signed it, but asked to have a copy sent back to me so I could actually read it and respond. That never happened. Anyway, after I sent the email, I was called into a meeting, where the DON, director of rhe clinic, the HR director, and various members of the DON's staff were all present. The DON presided to talk to me in a very loud voice, telling me she had read my notes, and did not think I was making good medical decisions (she is only a registered nurse so how can she tell me what a good medical decision is?) and I kept looking to my right at the clinic director, who had always been my biggest ally. But the looking from right to left at the DON several times caused me to have a VERY brief (3-5 secs) dizzy attack, but I was fine afterwards. After she finished going down her list, still in a loud voice, I once again asked for all of her documentation, and just went back to the clinic. Fifteen minutes later, I was called out of my patient's room, and told to go home. The HR director handed me a list of things I had to do before I could come back to work. The first item on the list was to lift and carry 50#. I also had to be able to manipulate IT servers, even though the servers were not in our building, and had to be able to walk from room to room, even though the medical assistants were bringing patients back, and bringing them to my one office on the days my balance was a little off. This did not happen regularly. I was never asked to lift 50# ***** I was hired, and none of the nurse practitioners hired since were asked to do so. In fact, none of the medical staff had to ever meet any physical requirements. The DON told me that I had to have clearance from my neurologist before I could come back to work. I had just seen my neurologist that week before, and he cleared me based on that visit. However, someone had told the CEO that I had a seizure, and he screamed at me that I had to be cleared for after the meeting, and told me I had to be cleared because I had had a seizure. Not true. But because I could not lift 50#, my neurologist could not clear me, but did write on the form that I was mentally and physically able to do my job. They would not accept that.
It is my opinion that the DON wrote up that list, and did not discuss it with the CEO, CFO, or with their legal department. Since that time, found out that no other medical staff who works at that facility have been asked to lift 50#, and the nurses only have to lift 35#. In February, after doing everything they requested, with the exception of the 3-day video EEG (my EEG was normal so insurance would never have paid for it), they told me "this" has dragged on too long and they were going to start steps toward terminating me or I could resign. Interestingly, my office had been cleaned out soon after I was told to go home in mid-November. Everything was in the boxes with the exception of a white notebook, in which I kept my documentation, including the original list given to me by the director of HR. I did give a copy to my neurologist, who had his MA copy it into my chart. They had also already hired someone to take my job by the end of November. Do I have a case for a violation of the ADA?
Submitted: 1 year ago.
Category: Legal
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

On these facts, I think that you do have either a disability or perceived disability claim. The perceived disability claim would be based on their belief that you were more disabled than you actually are, by assuming that you could not do the job even though your doctor stated that you could. Further, the issues of them following you around, talking about a seizure and other such issues tend to suggest a perceived disability complaint.

Their requirement that you lift 50 lbs is also problematic if the facts show that they only ask others for 35 lbs of lifting on a regular basis. The point is that the creation of a hurdle to employment that is unnecessary is a "pretext" to discrimination. Certainly, in employment law, an employer can place hurdles to employment that are appropriate. For instance, it is reasonable to require a pilot to have vision, as seeing is a bona fide occupational requirement for flying. However, requiring a data entry clerk to be able to run the 40 yard dash is 4.4 is not reasonable, because you don't need to be able to run that fast to sit at a desk and enter data.

Your situation is sort of in the middle of those two extremes. While it is certainly reasonable to expect that a nurse practitioner be able to lift, in certain situations, they can't unnecessarily inflate the amount of lifting beyond what would actually be required as a means of keeping someone out of employment that would otherwise be able to work if normal job parameters were considered.

You've definitely stated the frame work of an ADA claim here and you should immediately contact the EEOC in your state to file that claim and preserve your right to sue. You must go through the EEOC in order to be able to sue, because that is a legal prerequisite to filing a suit. The EEOC can investigate, set up a mediation (a facilitated discussion) and then give you a report on their finds, as well as, a "right to sue" letter. That packet is then what you use to hire a local attorney to file in Federal court, if the matter hasn't been resolved before then. You don't need an attorney to file with the EEOC. In fact, most want to wait until you are through that process before getting involved.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.