III. CREDIBLE DIRECT EVIDENCE IN THE RECORD DEMONSTRATES THAT
THE COMPLAINANT WAS REPLACED BECAUSE OF A PERCEIVED PHYSICAL DISABILITY:
A. Respondent J. Des McIvor, Acting as Executive Director of
the Respondent NEIMHC, Perceived Complainant Martin to Be Physically
Disabled:
1. This Complaint is Concerned With An Allegation of Discrimination
on the Basis of Perceived Disability, Not Actual Disability:
21. The parties stipulated that: "The Complainant was never permanently disabled, but was merely unavailable for work until she completed her treatment and therapy." (Stip. No. 2). This stipulation is consistent with the complaint which alleges discrimination on the basis of perceived physical disability as opposed to an actual physical disability during the time she was absent due to treatment of her cancer in 1991. The claim is that cancer occurring at a future date was perceived as a disability The only individual alleged to have this perception was J. Des McIvor, Executive Director of NEIMHC. There is no claim based upon discrimination due to temporary disability. The allegation concerns a perceived disability which may occur or recur over a period of months or even years. (Notice of Hearing).
2. Complainant Martin's Testimony Concerning Her Conversations
With Respondent McIvor on August 2 and 12, 1991 Is More Credible
and Provides Direct Evidence of Discrimination:
22. There is substantial, credible direct evidence that J. Des McIvor did perceive Complainant Martin to be physically disabled. During their August 2, 1991 telephone conversation, Complainant Martin asked Mr. McIvor if she still had a job, as he had made very little comment during the conversation. He replied "You may not." (Tr. at 45). She asked what was going on. McIvor stated "I've hired somebody else." Martin replied, "You hired somebody else to do my job? Its about the time that I'm going back to work." (Tr. at 46). McIvor then responded, "How do I know but that you'll get cancer in two months or two years again?" (Tr. at 46, 106). He stated he had to hire somebody. (Tr. at 106).
23. Taken in the total context of the conversation, this remark is an explanation as to why a replacement was hired. Martin then commented that she could also cross the street and get hit by a car. She finally confirmed she would meet with him on the 12th, as there was nothing further to say. (Tr. at 46).
24. On August 12, 1991, as previously noted, Complainant Martin did meet with Respondent McIvor. It is undisputed that, during that meeting, one of the options given Martin was to file for disability insurance. See Finding of Fact No. 11.
24A. There is no evidence in the record to indicate that, on August 2nd or 12th, McIvor believed that Complainant Martin had not recovered from the cancer she was treated for. His notes made concerning the conversation of August 12th refer to "her recovery from cancer." (CP. EX. 1). The concerns he expressed on August 2nd dealt with future occurrences of cancer. See Finding of Fact No. 22.
25. Complainant Martin's demeanor and testimony indicated that her recollection of the August 2, 1991 telephone conversation was clear, definite, and certain. (Tr. at 46). She did not have to rely upon her journal notes or other documentation to refresh her recollection on this matter. (Tr. at 44). Her testimony is also credible because it is consistent with her statements made in her complaint on September 18, 1991. The complaint, sworn before a notary public, states that on August 2, 1991, "Respondent stated he had hired someone to do my job. In asking him why he stated that it was 'because of your cancer' and also he said "In two months or two years, it (the cancer) could return.'" (Notice of Hearing).
26. Respondent McIvor testified that he did not remember talking about cancer to the complainant on the phone on August 2, 1991. (Tr. at 304). With respect to the conversation on August 12th, where he gave the Complainant the option of filing for disability insurance, he testified that he did not feel she was disabled when he made that suggestion. (Tr. at 352). He testified that he suggested she check this out because it was the only resource the NEIMHC had available which might be worth checking out. (Tr. at 298, 352). He further testified that he did not know what the personnel policy gave as a definition of disability when he made this suggestion. He stated that he did not have any definition of disability in mind when he made the suggestion. (Tr. at 333-34). He testified that on neither August 2nd or 12th did Complainant Martin act or appear to him to be disabled. (Tr. at 352-53).
27. With respect to the August 2nd conversation, Complainant has the better, clearer, more detailed memory. With respect to August 12th, it is certainly true that the recommendation to an employee by an employer to check out a disability policy does not necessarily mean she is perceived as disabled. This is not believable as the explanation for the suggestion in this case, however, because of the prior remarks McIvor made to the Complainant on August 2nd and his remarks to others discussed below.
3. Respondent McIvor's Remarks to Alice Scott and Allen Ekholm:
28. In 1991, Alice Scott was employed as a clinical social worker with NEIMHC. (Tr. at 115). At some point after Complainant Martin began her leave, Ms Scott found out she was gone due to cancer. (Tr. at 118). During that time, McIvor made a statement to several persons, including Ms. Scott, who were talking about Ms. Martin's illness. McIvor made a remark to the effect that he wasn't going to hire any more people over 50 because the older they got, the sicker they became. (Tr. at 120, 129). He also made a remark about money, to the effect that he couldn't afford it. ( Tr. at 120). It should be noted, however, that these statements were, to a degree, made in a humorous context, although Ms. Scott did not find them to be funny, but offensive. (Tr. at 129). Ms. Scott felt Mr. McIvor tried to make "a joke out of everything." (Tr. at 130). There is nothing in the record to indicate that Ms. Scott was a biased witness.
29. Allen Ekholm had a conversation with Mr. McIvor about Complainant Martin and her cancer. This conversation was "somewhere around the time of when it was known by everyone that she wouldn't return to work. I don't know if it was right before or right after, but it was somewhere around that time." (Tr. at 196). Certain documents help provide an idea of when that time might be. On August 14, 1991, NEIMHC received a letter, dated August 13, 1991, from Complainant Martin to Mr. McIvor. In that letter, Martin indicates she had consulted with her doctors who indicated that she was ready to return to her job and perform her duties as she had prior to surgery. Therefore, she stated, "the Long Term Disability Insurance will not work for me." She also asked to return to her full-time position with benefits. If this was not acceptable, she would have to file for unemployment insurance. (CP. EX 1). On August 19, 1991, she verbally informed McIvor that she was "going to try for unemployment insurance." (CP. EX. 1). Complainant Martin filed for unemployment insurance was on August 18, 1991. See Finding of Fact No. 11. Notice of this filing was mailed to NEIMHC on August 21, 1991. The copy of the notice in Complainant's personnel file is date stamped "AUG 23 1991". (CP. EX. 1). Therefore, it would appear that the time when "everyone" knew that Complainant Martin wasn't returning to work would have been during or after the period of August 19-23, 1991.
30. During the course of this conversation, Mr. McIvor informed Ekholm that McIvor was afraid that Complainant Martin's cancer would return, that she would have future problems with her cancer. Ekholm stated, "[McIvor] was afraid that cancer might come back on her, there would be future problems with the cancer, and I took that to be . . . the main reason why she wasn't coming back. That's all I got out of that conversation, because of her cancer, he wasn't going to bring her back." (Tr. at 197).
31. Mr. Ekholm has also filed a pending civil rights complaint against the Respondent, but denies that this has influenced his testimony. (Tr. at 198-200). Of greater importance in assessing his credibility is his lack of a clear, specific, and detailed account of the conversation. (Tr. at 196-97). Mr. Ekholm also had some difficulty remembering other facts, which are not material to this case, such as the fact that his six month probationary period had not ended when he was terminated in 1992. (Tr. at 200-02). However, his testimony seems credible because of its consistency with Complainant Martin's testimony concerning her August 2nd conversation with Mr. McIvor.
4. The Record of Complainant's Hospitalization and Treatment,
and of the Respondent's Knowledge and Beliefs Concerning The Complainant's
Treatment and Condition Support the Finding That Complainant Martin
Was Perceived As Disabled and Therefore Had A Substantial Handicap:
32. The Complainant's absence, hospitalization, surgery, and radiation treatment for cancer have already been described. See Findings of Fact Nos. 6-9. The Respondents' awareness that she was absent for hospitalization and involved in such treatments is demonstrated by documents in the personnel and sick leave files. (CP. EX. 1; R. EX. 10). In a letter of July 18, 1991, and memorandum of August 2, 1991, Respondent McIvor also suggested that the Complainant underwent chemotherapy, although this is not mentioned in her testimony and is denied in her complaint. (CP. EX. 1; Notice of Hearing ). At times during her surgery and radiation treatment, Complainant Martin's ability to speak was affected. (Vega dep. at 13; CP. EX. 1; Tr. at 28). Respondents were informed of this, with respect to the surgery, on or about May 22, 1991 by Mr. Bandstra. (CP. EX. 1). Due to the surgery and radiation, Complainant Martin no longer has any saliva glands and must drink water to replace the saliva whenever she talks. (Tr. at 7). At one time prior to the end of her absence, Respondent McIvor was concerned that she would not be able to work full-time because of "her speech problem" resulting from the treatment. (Tr. at 354). See Conclusion of Law No. 47.
5. Neither McIvor's Failure to See or Otherwise Personally
Observe Complainant's Condition Through His Own Senses During
Her Leave Prevent the Commission From Concluding That He Perceived
Her to Be Disabled:
33. It is undisputed that, from on or about the time her leave began on April 29, 1991 to her meeting with Respondent McIvor on August 12, 1991, Respondent McIvor neither personally viewed Complainant Martin nor had official medical reports on her condition. (Tr. at 91-93, 98). Respondents argue that this means McIvor could not have perceived Complainant Martin to be disabled. For reasons stated in the Conclusions of Law, this does not prevent the Commission from finding that McIvor perceived Martin to be disabled. See Conclusion of Law No. 14-15.
6. Neither The Treatment Given Other Employees With Cancer,
All of Whom Went on Leave After the Complaint Was Filed, Nor the
Rehire of Complainant Martin Demonstrates That McIvor Did Not
Perceive Martin or Any Other Employee With Cancer As Being Disabled:
34. The evidence in the record demonstrates that two other employees, Beverly Smith and Jacqueline Fenelon, took sick leave for cancer and did not lose their jobs. (Tr. at 125, 300-01, 359-60). Both of these sick leaves occurred in 1992. (Tr. at 359). Similarly, the Complainant was rehired by NEIMHC on August 2, 1992. (Stip. No. 1). These events occurred months after service of the complaint in this case on Respondents on September 26, 1991. (Stip. No. 9). While Respondents argue that these cases demonstrate that they did not perceive individuals with cancer as being disabled, it is well recognized, as stated in the conclusions of law, that corrective or nondiscriminatory actions taken in the face of litigation are not persuasive evidence with respect to the practices, and, by analogy, the perceptions, of Respondents prior to the service of the complaint. See Conclusion of Law No. 23.
7. The Offer of Limited Part-time Employment Once Complainant
Was Able to Return to Work Does Not Demonstrate That McIvor Did
Not Perceive Complainant Martin to Be Disabled:
34A. Respondents also argue that the offer of limited part-time employment to the complainant after she was replaced in her full-time job demonstrates that she was not perceived as disabled. (Reply Brief at 10). As set forth more fully below, there is direct and circumstantial evidence that the Respondents did perceive Complainant Martin as having a continuing disability involving recurring cancer. It flies in the face of logic to require this Commission to find that an employer did not perceive as being disabled a full-time employee on leave for cancer treatment merely because, after replacing her, it subsequently offers her a very limited part time position without benefits. See Finding of Fact No. 11.
B. There is Credible Direct Evidence in the Record to Show
that Complainant Martin Was Terminated From Her Former Position
and Replaced Because of a Perceived Physical Disability:
1. The Greater Weight of the Evidence Demonstrates That Complainant
Martin Was Terminated From Her Former Position and Replaced By
Allen Ekholm:
35. There is contradictory evidence concerning whether or not Complainant Martin was effectively terminated from her position as substance abuse counselor on or about the time that Allen Ekholm's acceptance of the offer for that position was received by Respondents on July 16, 1991. See Finding of Fact No. 20.
36. On the one hand, Complainant Martin had been informed by telephone on June 5th, and by a typed message on June 12, 1991, that, after June 24th, she would be on unpaid leave of absence without pay, although one-half of her medical insurance premium would be paid by NEIMHC. This was to continue until July 24th, when the situation would be re-evaluated. (CP. EX. 1). On July 18th, McIvor sent Martin a letter indicating that he would be on vacation from July 19th through August 1st and would meet with her on August 12th. (CP. EX. 1). This evidence would indicate that Complainant Martin had not lost her position, but was on a leave of absence until August 12th.
37. On the other hand, although Respondent McIvor's written offer to Ekholm of July 10th mentioned that Ekholm would be sharing an office with Complainant Martin, McIvor knew when he sent the letter that Ekholm was replacing the Complainant. (CP. EX. # 3; Tr. at 288, 329). Nonetheless, McIvor testified that he still hoped to offer Complainant new employment in some capacity, depending on what hours were available. (Tr. at 289, 291, 292-93). On August 2nd, Complainant Martin was informed for the first time that she may not have her old job to return to and that a replacement had been hired. On August 12th, she was informed by McIvor that she had "no job at the current time" with Respondent NEIMHC. See Finding of Fact No. 11.
38. On brief, Respondents admit that "Kathrine Martin's position [was] being either filled or terminated;" that "a replacement was hired for her;" and "that she lost her job." (Reply Brief at 9, 11).
39. Based on the above facts, it is clear that Complainant Martin was terminated from her position as substance abuse counselor on or about July 16, 1991. After that date, the "unpaid leave" referred to in the communications to Complainant Martin was the equivalent of a post-termination extension of the benefit of one-half the cost of medical insurance premiums. After July 16th, Complainant Martin's employment status was, at most, a bare possibility of an offer of employment with NEIMHC at the end of her absence due to cancer. The extent of employment offered or whether there would be an offer depended on what, if any, hours were available. There was an offer of part-time employment made to the Complainant after she was informed, on August 2nd and 12th, of the termination of her position and her replacement. See Finding of Fact No. 11. Respondent McIvor's claim that Complainant Martin was never terminated until August 12, 1991 is simply not credible in light of the above facts. (Tr. at 320-21, 339-40).
2. The Direct Evidence Previously Noted Demonstrates That Complainant
Was Replaced Because of Her Perceived Physical Disability:
40. The statements, detailed above, made by Respondent McIvor to Complainant Martin, Alice Scott, and Allen Ekholm constitute credible direct evidence that McIvor replaced Complainant Martin because of a perception that there would be future recurrence of her cancer. See Findings of Fact Nos. 22, 28, 30. This evidence is sufficient to establish a prima facie case of perceived disability discrimination with regard to the direct evidence method of proving discrimination. See Conclusions of Law Nos. 58.
3. It May Be Reasonably Inferred From The Evidence That the
Reason Why Respondent Was Concerned About A Recurrence of Complainant's
Cancer Would Be the Future Absences and Associated Costs Which
Would Result From Such Recurrence:
41. The reason why recurrence of Complainant's cancer was of concern to McIvor may be inferred from a second reason given to complainant for her termination and replacement by Ekholm. At the August 12, 1991 meeting, she was told by McIvor that he had lost a considerable amount of money due to the length of her absence and needed to have someone come in and work full time. Therefore, he stated, he had hired Ekholm. (Tr. at 47, 48). This factor was not mentioned during the August 2nd telephone call. (Tr. at 47). It is undisputed that Complainant Martin's absence was due to cancer experienced by her in 1991. (Stip. No. 3; CP. EX. # 1). It may be reasonably inferred from this second reason, that McIvor's concern with recurrence of cancer, expressed on August 2nd, was related to the recurrence of past absences and costs associated with Complainant Martin's cancer. McIvor agreed that he thought that if the Complainant became ill again she would cost NEIMHC a lot of money if she was off work. (Tr. at 317).