January 15, 2007
United States Equal Employment Opportunity Commission
St. Louis District Office, Robert A. Young Federal Building
1222 Spruce Street, Room 8.100
St. Louis, Missouri 63103
Re: MetLife Disability and Western Union are discriminating against Carolyn Nance because of my disability.
I, Carolyn Nance, respectfully request the Equal Employment Opportunity Commission (EEOC) to file a charge against and investigate, in my behalf, Western Union and MetLife Insurance/Disability for discrimination based on Title I of the Americans with Disabilities Act of 1990 (ADA).
My disability is having a colostomy bag. A Colostomy is a surgical formation of an artificial anus by connecting the colon to an opening in the abdominal wall. A Colostomy Bag is a container kept constantly in position to receive feces discharged through the opening created by a colostomy. An uncontrolled GI system is medically known as “incontinence.” Incontinence is described as an “inability of the body to control the evacuative functions” (Merriam Webster’s Medical Desk Dictionary, 1996).
In May of 2005 Carolyn went out on sick leave for approximately 5 weeks under doctor’s care. In June of 2005, due to pressure from Western Union’s Human Resource Department and possible termination, Carolyn went back to work against her doctor’s orders. Subsequently, Carolyn became sick again in August of 2005 and went on sick leave again. Carolyn was threatened with termination again by Western Union for being off sick. In December of 2005 Carolyn had a Hysterectomy. Western Union terminated Carolyn’s employment on or about December 15, 2005. Carolyn was reinstated on or about March 22, 2006 with the assistance of Ms. Earline Jones, President of Communications Workers of America, AFL-CIO, Local 6377.
Upon coming back to work on or about June 6, 2006, Carolyn has engaged in numerous conversations with Western Union staff about her disability and their lack of accommodations for it. After many discussions with Western Union staff and medical complications, on or about November 27, 2006 Carolyn went on sickness disability leave of absence. This is confirmed by a letter I received from Western Union dated December 20, 2006. Presently, Western Union is attempting to terminate Carolyn’s employment again because of her disability. Western Union claims Carolyn has been absent too many times, even though they are aware it is because of their lack of providing appropriate accommodations, which would not be a financial strain to the company because the worksite where Carolyn’s employed is currently under construction.
In a letter dated December 28, 2006 MetLife Insurance Company reports Carolyn’s claim for Short-Term Disability benefits has been denied. Carolyn has provided the necessary information/documentation requested by MetLife to suggest she is disabled due to her medical condition. Carolyn’s doctor has released and answered the appropriate questions on the MetLife Disability Claim Supplemental Attending Physician Statement issued.
Therefore, it is our belief Western Union and MetLife Insurance/Disability have discriminated against Carolyn due to my disability pursuant to ADA, which prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Western Union has discriminated against Carolyn because they do not have accommodations for employees with a disability, such as hers, at her current worksite. This is why Carolyn had to go on Sick Leave from Western Union. Her worksite has refused to accommodate her with the appropriate bathroom accommodations for employees with a colostomy bag.
MetLife Disability has discriminated against Carolyn because of their refusal to pay compensation due for her disability. The letter written to MetLife Disability dated January 15, 2007 describes the alleged discrimination by both Western Union and MetLife. This letter may at times speak of me, Carolyn Nance, in the 3rd person. This is because this letter is typed and written as a joint effort by my father, Fred L Nance Jr., and me.
MetLife Case Manager Ms. Coughlin’s letter states, “…Your plan states that Disabled or Disability means that, due to Sickness or as a direct result of accidental injury….” The ADA provides that an employer may not discriminate against "a qualified individual with a disability because of the disability." 42 U.S.C. § 12112; see also Moore v. Payless Shoe Source, Inc. , 139 F.3d 1210, 1212 (8th Cir. 1998); Dush v. Appleton Elec. Co. , 124 F.3d 957, 961 (8th Cir. 1997). A "qualified individual with a disability" is a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also Dush , 124 F.3d at 961.” Carolyn can perform her assigned duties with appropriate bathroom accommodations for one who has and wears a colostomy bag.
Determining whether an individual has a qualifying disability requires an individualized analysis of the claimed impairment, including factors such as the nature and severity, probable duration, and expected long-term impact of the impairment. See 29 C.F.R. §
1630.2(j)(2); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999); Heisler v.
Metro. Council, 339 F.3d 622, 627 (8th Cir. 2003). Major life activities under the ADA are basic activities that the average person can perform with little or no difficulty, including "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
The "ability to perform cognitive functions on the level of an average person" constitutes a major life activity. Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002). See also Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999). Carolyn has a mental disability, which is well documented with Western Union and is exacerbated by this issue. Accordingly, thinking and concentrating qualify as "major life activities" under the ADA. See Shaver v. Indep. Stave Co., 350 F.3d 716, 720-21 (8th Cir. 2003), citing Brown, 286 F.3d at 1044-45. See also Head v. Glacier Northwest Inc., 413 F.3d 1053, 1061 (9th Cir. 2005); Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 383 (3d Cir. 2004), citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999); Nawrot v. CPC Int'l, 277 F.3d 896, 907 (7th Cir. 2002).
Where the employee requests accommodation, the employer must engage in an "informal, interactive process" with the employee to identify the limitations caused by the disability and the potential reasonable accommodations to overcome those limitations. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999), quoting 29 C.F.R. § 1630.2(o)(3). An employer hinders this process when: the employer knows about the employee's disability; the employee requests accommodations or assistance; the employer does not in good faith assist the employee in seeking accommodations; and the employee could have been reasonably accommodated but for the employer's lack of good faith. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005), citing Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002).
Under the ADA, punitive damages are available to employees who suffer intentional discrimination by an employer who acts with malice or reckless disregard of a federally protected right. See 42 U.S.C. § 1981a(b)(1); Ollie v. Titan Tire Corp., 336 F.3d 680, 688 (8th Cir. 2003). In Kolstad v. American Dental Association, the Supreme Court clarified that "'malice or 'reckless indifference' pertains to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." 527 U.S. 526, 535 (1999). The ADA notes examples of reasonable accommodations, including restructuring of a job and providing part-time or modified work schedules, see 42 U.S.C. § 12111(9)(B), which in addition are “…reassignment to a vacant position, acquisition or modification of equipment or devices….”
Respectfully submitted,
Carolyn Nance
Supporting documentation: A-1 through A-23
January 15, 2007
MetLife Disability
Barbara Coughlin, Disability Case Manager
P.O. Box 14592
Lexington, KY, 40511-4592
Re: Carolyn Nance, Employee ID# 168948
Policyholder: First Data Corp – Claim #350611278079
Ms. Coughlin:
Pursuant to your letter dated December 28, 2006 (A-13), I, Carolyn Nance, am appealing your decision in this matter. The Disability Claim Supplemental Attending Physician Statement (herein called “Statement”) will be reference as stated here. In the “Statement” it reports, “…You may appeal this decision by sending a written request for appeal to MetLife Disability…within 180 days from the date of this letter. I have engaged the services of my father, Fred L Nance Jr., who is an advocate for the socially disenfranchised and disadvantaged. My father will post this letter and any additional information on his websites at: http://click.townhall.com/ and http://clickforjusticeandequality.blogspot.com/. My consent for advocacy work with my father will accompany this letter (A-1). My father has constructed this letter for me.
Carolyn has written a letter to Mr. Tom Lysinger, Vice President of Customer Service & Quality. Mr. Lysinger has written Carolyn back on September 12, 2006 stating, “Carolyn: I received your note regarding restrooms. I am very concerned. I would like for Paula Hearn to meet with you to ensure you have what you need. Is that OK? Regards, Tom” (A-23).
The “Statement” letter (A-14) reports “…We have reviewed your entire claim, including the following information that was submitted: Attending Physician Statement dated December 12, 2006 signed by Robert Byrne, MD. Your physician did not indicate that you were disabled as of November 27, 2006…The document that was submitted did state that you had a colostomy bag and uncontrolled GI system, but did not provide any information such as current restriction or limitations preventing you from performing your job as a Customer Service Representative. Therefore your claim has been denied.” I disagree.
The “Statement” reports under the Psychological Functions section, which is checked off by Dr. Byrne, “Class 5 – Patient has significant loss of psychological, physiological, personal and social adjustment (severe limitations).” Also under Psychological Functions “What stress factors or problems with interpersonal skills have affected patient’s ability to perform the duties of his or her job? Dr. Byrne states caring for colostomy bag.
Under “Patient’s ability to lift/carry” sections (e)(f)(g) Dr. Byrne has given the following answers: (e) In your opinion, why is patient unable to perform job duties? (Dr. Byrne’s answer) Due to colostomy bag & uncontrolled GI system; (f) Patient can work a total of “0” hours per day (Dr. Byrne’s answer); and (g) Do you expect improvement in any area? (Dr. Byrne’s answer) Yes. (If so please comment and give dates/timeframes.) Unknown pt has colostomy bag (A-14).
Colostomy is a surgical formation of an artificial anus by connecting the colon to an opening in the abdominal wall. A Colostomy Bag is a container kept constantly in position to receive feces discharged through the opening created by a colostomy. An uncontrolled GI system is medically known as “incontinence.” Incontinence is described as an “inability of the body to control the evacuative functions” (Merriam Webster’s Medical Desk Dictionary, 1996).
Under the prognosis section, it states “Have you advised patient to return to work?” Dr. Byrne’s answer is no. This section asks “If not, please explain.” Dr. Byrne states not enough assurance for restroom. This section also asks “Any work/activity restrictions applicable (please be specific):” Dr. Byrne’s answer is “she needs access to bathroom, handicapped (A-14).
Dr. Byrne has appropriately provided MetLife Disability with information on Carolyn’s current restrictions and limitations.
In addition, Carolyn Nance reports her worksite at Western Union does not have accommodations for employees with disabilities, such as described here. The bathroom area of Carolyn’s worksite does not accommodate a person with a colostomy bag where a person can comfortably empty the bag while using the toilet. In Carolyn’s case, which is uncontrollable, the following takes place: When her body is depositing feces from the colostomy into the colostomy bag, some of the feces are being deposited into her clothes. By this being uncontrollable, Carolyn is unable to know or determine when her body is about to deposit the feces.
Carolyn has been complaining about her condition to her supervisors and managers about this issue since her return to work on June 6, 2006. Carolyn was discriminated against and terminated from her employment with Western Union on December 15, 2005 because of her disability before she became hospitalized leading to the colostomy procedure and bag. At the time, Western Union claimed the termination was due to Carolyn’s attendance. Carolyn’s lack of attendance was due to her disability, which is well documented with Western Union (A-3).
In a letter dated March 22, 2006, which states it was revised on April 3, 2006, Ms. Earline Jones, President of Communications Workers of America (CWA), facilitated an agreement with Western Union Financial Services, Inc. The parties agreed to the following: (1) Ms. Nance shall be reinstated as a Customer Service Representative; (2) Ms. Nance will be paid her regular wage rate from December 13, 2005 up to and including December 30, 2005; (3) Per notification from the union, Ms. Nance was hospitalized on December 31, 2005, and may have become disabled on that date. For the purposes of this agreement only, the company will consider Ms. Nance as continually disabled beginning December 31, 2005 up to the date of this agreement. The company will retroactively apply the sickness disability provisions of the Plan for Employee’s Pensions, Disability Benefits and Death Benefits. Ms. Nance will be paid sickness disability benefits, in accordance with the plan’s provisions, for four (4) weeks as full pay and nine (9) weeks of half pay; (4) Ms. Nance will contact The Hartford, and open a claim of sickness disability and provide the necessary documentation to support her continued absence from work; (5) Ms. Nance seniority will be considered unbroken; (6) Ms. Nance will have her Attendance Termination letter revised to a repeat Fair and Final, 3-day in-house suspension; (7) Ms. Nance Medical Coverage under COBRA will be paid by the company. Ms. Nance will be reinstated in company plan benefits effective the first of the month following the receipt of her benefit enrollment forms; and (8) The Union will withdraw the grievance L3-06-06. This settlement is being made on a no-precedent, no-prejudice basis by both parties, with neither party surrendering or conceding any rights relative to any similar situations that may arise in the future (A-4).
Western Union knew or reasonably knew Carolyn had a disability (A-3 eq seq). Western Union knew or reasonably knew the concerns of Carolyn’s disability. MetLife Disability knew or reasonably should have known what Carolyn’s disability entailed because they are in contact with Western Union about this matter, insisting Carolyn jump through these illegal hoops attempting to discourage, causing mental anguish, which violates ADA. Carolyn has requested from Western Union a reasonable accommodation, which allows for a handicapped equipped bathroom. Western Union has no accommodations for the handicapped using the bathroom at Carolyn’s work location.
Therefore, it is our belief Western Union and MetLife Disability is using a “heightened standard” to evaluate Carolyn’s disability. It is also our belief EEOC has cause to charge, investigate and declare Western Union and MetLife are in violation of ADA and has discriminatory practices in the workplace, violating ADA. Western Union made no meaningful effort to resolve the accommodation for Carolyn. Western Union and MetLife may also be retaliating against Carolyn.
Respectfully submitted,
Carolyn Nance
Fred Nance Jr., ABD, MA, CADC, NCRS
cc:
United States Equal Employment Opportunity Commission
http://click.townhall.com/
http://clickforjusticeandequality.blogspot.com/
Ms. Barbara Coughlin, MetLife Disability Case Manager
Ms. Jocelyn Coates, Western Union Human Resource Manager
Ms. Diana Burnson, Western Union Financial Services, Inc.’s Manager of Human Resources
Ms. Earline Jones, President Local 6377 CWA, AFL-CIO
