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Continued: Feds fight for fired cancer patient

  • Article by: LORA PABST , Star Tribune
  • Last update: January 19, 2011 - 12:39 PM

Fighting for her life against brain cancer, nurse Anne Whitledge wanted to keep working. Instead, the health care giant she worked for fired her in February 2009.

Eight months later, her husband died of a sudden heart attack. The St. Paul woman battled her disease for another 10 months before dying in August at age 43. Her orphaned 10-year-old daughter was left without any life insurance money because her parents' policies had been through Whitledge's employer, Maxim Healthcare Services.

Now the Equal Employment Opportunity Commission is suing Maxim, accusing the Maryland company of violating the Americans with Disabilities Act by firing Whitledge instead of helping her find a way to keep working.

In court filings, Maxim said the firing was legally justified because Whitledge was unable to perform her job and because she presented a "direct threat" to the health and safety of herself or others. Maxim's attorneys declined to discuss details of the case or explain how Whitledge posed a threat.

The Whitledge case has emerged as one of the first nationwide to test changes to the ADA enacted two years ago by Congress. Her experience shows how cancer patients and others with disabilities are sometimes forced to confront perplexing challenges at a time when they are most vulnerable.

In 2010, 978 cancer patients nationwide filed complaints of wrongful termination and other types of discrimination, up from 434 complaints in 2000, according to the EEOC.

"I am hopeful that this case will provide a wake-up call for employers who are working with people who have cancer and other kinds of debilitating diseases, so they will comply with their duties under the law," said Celeste Culberth, a lawyer representing Whitledge's estate.

While other cancer patients have used the ADA to sue over alleged discrimination, many of those lawsuits failed because the courts didn't always treat cancer as a disability, according to legal experts and disability advocates. Congress responded to complaints in 2008 by revamping the ADA, changing the law to make it easier for people to prove they are disabled.

In the near future, the EEOC is expected to release new rules that will define certain diseases and conditions as a disability, including cancer, autism, cerebral palsy, AIDS, diabetes and epilepsy. The new guidelines will likely shape how employers deal with millions of disabled employees.

Whitledge's case is one of three discrimination cases involving cancer patients that have been brought by the EEOC since the ADA amendments were enacted. Disability advocates are closely watching the cases to see how the courts respond.

"It's such a new area," said Lindy Yokanovich, founder and executive director of the Cancer Legal Line, a Minnesota nonprofit that offers help to cancer patients with employment problems and other legal issues. "It's really changing in real time, right here."

Fighting to the end

Before becoming a nurse, Whitledge worked as a New Brighton police officer in the 1990s, according to Larry Williams, a longtime family friend who is now raising Whitledge's daughter near Brainerd.

Whitledge was married to Ramsey County sheriff's deputy Ed Whitledge. Along with Williams, also a former police officer, the three served as bodyguards for Jesse Ventura during his 1998 gubernatorial campaign.

After being injured in a work-related car accident, Whitledge left law enforcement and went back to school to become a registered nurse. In 2007, she was hired as a nursing director for Maxim Healthcare Services, a national company with more than $1.3 billion in revenues and 35,000 employees, according to a recent Dun & Bradstreet report. The company, which has 360 offices in the United States, provides nurses and home health care services in Minnesota, plus runs hundreds of flu shot clinics.

Whitledge found out she had cancer at the end of 2007. She was insistent that she could fight her disease and continue working, which she did for about a year after her diagnosis, Williams said.

"I know she wanted to go back to work, no question about that," he said. "She never wanted to give up on anything."

In December 2008, Whitledge took an eight-week medical leave, according to EEOC records. When she tried to return to her job in February 2009, she was told she needed a clearance note from her doctor. Her doctor provided several notes saying Whitledge could work full time and needed only occasional days off for treatment, EEOC records show.

"Subsequently, I tried several times to speak to [Maxim's] decision makers about when I would be able to return to work," Whitledge wrote in her complaint to the EEOC. "The decision makers would not take my calls, so I left messages."

In a conference call on Feb. 25, 2009, Maxim fired Whitledge. In court filings, Maxim claimed Whitledge couldn't be accommodated without creating "undue hardship" for the company.

Whitledge filed a complaint with the EEOC in March 2009. She continued cancer treatments until shortly before she died, Williams said.

In its suit against Maxim, the EEOC is seeking to recover an undisclosed amount of life insurance and back pay, plus compensatory and punitive damages of up to $300,000.

Williams said he is trying to follow through on his promise to Whitledge that she wouldn't have to worry about her daughter.

"My wishes would be to make Mariah's life as normal as possible without her real parents," he said.

A 'terrifying' prospect

More than one in five cancer victims said the disease had a negative impact on how others viewed their ability to work, according to a 2006 survey by the Kaiser Family Foundation and Harvard School of Public Health.

"If you're the sole breadwinner and you have cancer and you carry the [insurance] policy for your whole family, it's terrifying to think about losing your job," Yokanovich said.

Under the ADA, employers are supposed to look for a reasonable accommodation that will allow a disabled individual to continue working. In Minnesota, the state Human Rights Act offers similar protection.

The first ADA case tried by a jury dealt with a cancer patient who was fired from his job after a terminal lung cancer diagnosis. Charles Wessel, an executive with a Chicago security-guard company, was awarded $572,000 in 1993 for back pay and damages.

Subsequently, federal courts across the country threw out cases involving breast cancer patients and people whose cancer was in remission because they couldn't prove that they were "substantially limited" in a "major life activity," the definition of a disability under the ADA. They often had to prove that they were unable to eat, walk, stand, speak or breathe. Many cancer patients who want to work didn't meet that definition, experts said.

"They had built up this definition of disability that was almost impossible for anybody to meet," Yokanovich said. "Now they've broadened the definition of disability so that many more types of conditions will qualify. Everyone knows it's a big change, but nobody knows yet how big."

Lora Pabst • 612-673-4628

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