Maine Human Rights Commission

Investigator finds city discriminated against diabetic employee

Commission to vote on matter Feb. 24
By Tanya Mitchell | Feb 11, 2014
Photo by: File image

Augusta — An investigator for the Maine Human Rights Commission sided with a former employee of the city of Belfast on his complaint that the city subjected him to discrimination when he sought a variance in his work schedule to manage his diabetes.

David Cobb of Randolph filed his complaint with the MHRC June 29, 2012, and in it he alleged the city unlawfully discriminated against him because of his diabetes "by refusing to grant the reasonable accommodation of working no more than two nights per week for a period of two months."

In the investigator's report, the city denied Cobb had a disability.

"Even if he did, complainant's requested accommodation was denied because a doctor determined that his blood sugar spikes were largely due to his own poor food choices and did not appear to warrant any modification in his work schedule," stated the report.

According to the complaint, Cobb started working for the city as a paramedic firefighter for the city's fire and ambulance department in September 2011 and the alleged discrimination occurred May 9, 2012. Cobb submitted his resignation May 11, 2012, and it was effective May 31, 2012.

In March 2012, according to the report, Cobb submitted a note from his doctor to his supervisor that stated Cobb would need to limit work to two nights per week for the next two months for medical reasons. In response to the supervisor's request for more information, Cobb's doctor submitted a second note in April stating Cobb's need for an altered schedule was due to poorly controlled blood sugar.

Later in April, according to the report, Cobb's supervisor required him to undergo a fitness-for-duty evaluation that was to be conducted by another physician. Soon after the evaluation, Cobb received a letter from his employer outlining the findings of the second doctor, which stated Cobb's condition was largely due to his own dietary choices during his shifts. The letter further stated Cobb's condition did not pose a public safety risk, that it was not a work-related condition and that the city did not need to provide any accommodation. The letter additionally directed Cobb to resume his prior schedule of working three nights per week.

Cobb did not believe the city granted the accommodation was a hardship because it would have been a temporary schedule change. Due to the city's failure to allow it, he submitted his resignation.

In its response to the complaint, the city, through its attorney, Mark Franco, stated Cobb never requested an accommodation for any medical condition until he submitted the note from his doctor in March 2012.

Cobb was allowed to remain on medical leave for three weeks after his initial request for a modified schedule, stated the report. Because Cobb served in a position which is safety sensitive, and because the initial doctor's note lacked detail, the city asked Cobb to see a doctor of its choosing.

The response from the city also stated that the results from that medical evaluation showed that while Cobb could be "somewhat short-tempered" when he suffered from high blood sugar, it would not adversely impact his work performance. The doctor's findings also stated the fact that Cobb's blood sugar tends to be higher when his sleep patterns change, but that is "not a work-related condition, and is not uncommon among diabetics."

In its response the city stated that where Cobb did not need the accommodation to perform his work functions, allowing the schedule change would have placed an undue burden on the city. The response also stated Cobb refused to return to work under his former schedule after returning from leave, and Cobb did not provide any further information regarding the necessity for his requested schedule modification. Instead, the report stated, Cobb submitted his resignation letter after he used up all of his accrued sick and vacation time.

"[Cobb] never stated that he resigned due to his medical condition or because his request for accommodation was refused," stated the report. "He also never submitted a grievance under the respondent's personnel policy."

As part of Cobb's response to the city's explanation of events, Cobb questioned the city's statement that allowing the accommodation would place an undue burden on the city because there were others who worked the same shifts he did who had covered for him in the past. Cobb also stated the city responded to his initial request for accommodation by taking him out of work altogether for a period of weeks, meaning the city had to make sure all of his shifts were properly staffed.

Cobb further stated that based on the wording of the letter he received after he visited with the physician of the city's choosing that he was working in a hostile environment. Because Cobb felt his health was at risk and the city was not willing to accommodate his request, he felt he had no choice but to resign.

MHRC Investigator Robert Beauchesne determined the city's argument that diabetes does not entitle Cobb to MHRC protection because it did not substantially limit one or more of his life activities or significantly impair his health is "not persuasive."

"In this case, [Cobb's] doctor provided evidence that [Cobb's] diabetes was in fact significantly impairing his health," stated the report.

Beauchesne also stated Cobb's requested accommodation was reasonable, and would not have placed an undue burden on the city.

"Respondent's position appears to be that since [Cobb] could control some aspects of his condition, it had no need to make any accommodation for his disability," stated the reprt. "This position is unsupportable."

Beauchesne found that even if Cobb's food choices contributed to his elevated blood sugar levels, it is undisputed that Cobb's felt Cobb needed the temporary schedule change to get his diabetes under control. Beauchesne also found that the doctor the city selected to see Cobb never stated the accommodation should not be granted.

Beauchesne also concurred with Cobb on the portion of his complaint stating the schedule change would not have placed a hardship on the city, noting that during Cobb's three-week medical leave the city covered nine of his shifts. The requested accommodation would have left the city covering eight of Cobb's shifts had it been granted by the employer.

Beauchesne also agreed with Cobb's contention that the denial of he accommodation affected the terms and conditions of his employment.

"[Cobb] was placed in the position of having to endanger his health, and ignore his doctor's advice, if he wanted to continue working for [the city]," stated the report. "[Cobb] made several attempts to speak with his supervisor and the city manager, to no avail. Under the circumstances, it was reasonable for [Cobb] to decide that he had no choice but to resign in order to safeguard his health."

This case will appear on the Feb. 24 Maine Human Rights Commission meeting agenda, at which time the commission will weigh in on the validity of the complaint and the investigator's subsequent findings.

According to its website, the MHRC is charged with enforcing Maine’s anti-discrimination laws. The commission investigates complaints of unlawful discrimination in employment, housing, education, access to public accommodations, extension of credit, and offensive names. The MHRC attempts to resolve complaints of discrimination to the mutual satisfaction of those who are involved, and the Maine Human Rights Act authorizes the commission to pursue remedies for unlawful discrimination in court when necessary to enforce the act.

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