SOCIAL SECURITY ADMINISTRATION v. STEVEN JONES is an ongoing 2002-20 Pennsylvania federal social security disability case which involves a Jehovah's Witness Minister living in the Philadelphia area. Steven Jones worked as a maintenance custodian for the Southeastern Pennsylvania Transportation Authority (SEPTA). In September 2001, Jones fell about 10 feet through an open grate and sustained multiple injuries described in an approved stipulation as sprain/strains of the right ankle and cervical spine region, low back pain, and discomfort in both shoulders.
In a February 2006 decision, the WCJ determined that all work-related disability of the right ankle, right knee, and low back ceased as of November 2004. However, it also determined that Jones remained totally disabled from symptoms related to his cervical spine and shoulder conditions.
In a November 2011 decision, the WCJ modified Jones' benefits to a 500-week period of partial disability based on an impairment rating evaluation of 35%.
In April 2015, the WCJ issued a decision denying Employer's termination, suspension and modification petitions based on a finding that Jones' symptoms related to cervical spine and shoulders continued and prevented him from returning to work in more than a light-duty capacity.
In May 2017, Employer filed a new termination petition alleging Steven Jones had fully recovered from his work-related injuries as of March 2, 2017, based on an independent medical examination. Ultimately, the IME Physician executed an affidavit of full recovery.
In July 2017, Jones filed a reinstatement petition seeking to modify his benefits from partial disability to ongoing total disability.Employer submitted into evidence a surveillance summary and video of surveillance conducted in July 2017. Surveillance observed Jones lifting and carrying recycling and trash cans to his neighbor's porch and side yard. A photo showed Jones lifting the recycling bin over his head with his left arm. Later in July 2017, Investigator observed Jones, a Jehovah's Witness, standing on a corner talking to others before entering a vehicle with others and returning to Kingdom Hall, their place of worship. Investigator also observed Jones pulling a large suitcase and setting up what appeared to be a portable display of pamphlets. Jones moved without restriction and gestured using his hands and arms.
Regarding the surveillance evidence, Steven Jones acknowledged lifting a recycling bin weighing 5 to 10 pounds. Jones also admitted that he drives his brother's car. As a Jehovah's Witness, Jones participates in activities three to four times a week. His duties also include pulling a briefcase or cart. Sometimes, Jones carries a shoulder bag with pamphlets and a tablet. Ultimately, the WCJ found credible Jones' testimony regarding his participation in weekly activities as a Jehovah's Witness.
However, based on IME Physician's testimony, the WCJ rejected Jones' testimony concerning his ongoing symptomatology and its impact on his ability to return to work. The WCJ rejected Jones' Physician's testimony that Claimant's condition remained unchanged despite over a decade of treatment. To the contrary, the WCJ found that Jones' Physician's lack of findings undermined his opinions and that Jones' complaints of a lack of range of motion and pain were purely subjective. In short, the WCJ found Jones' Physician's testimony "less than compelling" because his disagreement with IME Physician's testimony was based on Jones continued subjective complaints of pain.
The WCJ further found that IME Physician thoroughly examined Jones and reviewed his medical records for the last 10 years. The WCJ found particularly significant the lack of any objective findings on either examination or tests performed that would support a finding of ongoing disability. The WCJ also noted IME Physician's compelling testimony that Jones was not in need of a step-down program to wean him off Tramadol, an opioid medication. Therefore, the WCJ concluded that drug rehabilitation was unnecessary.
Summarizing, the WCJ found that IME Physician's opinions of full recovery and ability to return to work were supported by the objectively normal results of Jones physical examination. The WCJ also credited IME Physician's testimony that Jones did not exhibit spasm upon examination of the cervical spine as he had in the past. Accordingly, the WCJ granted Employer's termination petition effective March 2, 2017. The WCJ also denied Jones' two UR review petitions on the basis that all medical treatment subject to UR review, rendered after Jones' full recovery in March 2017, post-dated his full recovery, thereby rendering the UR review petitions moot.
On appeal, the Workers Compensation Appeals Board affirmed. The Board noted that IME Physician's testimony of full recovery provided substantial, competent evidence to support the WCJ's grant of Employer's termination petition. On further appeal, in 2019, the Board's decision was affirmed in Pennsylvania state court.
EDWARD ANTHONY ALBERES v. B.F. GOODRICH CORPORATION ET AL was a 2008-14 Louisiana workers compensation related lawsuit filed by a 70 year-old Jehovah's Witness Minister named Edward A. Alberes, who allegedly had contracted asbestosis during his lifetime of working multiple different construction jobs for several different employers from the time that he was 15 years old until he was 68 years old. Looking for any defendant with deep pockets to compensate him for his alleged asbestosis, B.F. GOODRICH CORPORATION ended up being one of such defendants named in this lawsuit, despite the fact that Ed Alberes apparently was never employed by B.F. GOODRICH CORPORATION.
Instead, Edward Alberes claimed that he had been employed by Anco Insulations, Inc., whom GOODRICH had hired to install insulation at one of GOODRICH's facilities in Louisiana. Although Alberes claimed that he had worked as a pipefitter's helper for ANCO at the GOODRICH plant for FIVE DAYS, Alberes could not even remember when such had occurred. Alberes ballparked the date as "in the late 1970's or early 1980's".
Alberes further claimed that he specifically could remember his duties, including the removal of old and installation of new GARLOCK brand gaskets on certain machinery -- which were alleged to contain asbestos. Alberes also claimed that his job duties during that FIVE DAY job included the cleaning up of old insulation (no claim that such contained asbestos) removed by other employees of ANCO.
Edward Alberes lawsuit also alleged that GOODRICH assigned one or more of its own employees to oversee ANCO's installation work, and due to such, GOODRICH had a duty to advise Alberes and other ANCO employees that they needed to wear proper PPE, and that GOODRICH even had a duty to provide such PPE.
The Louisiana trial court granted Goodrich's motion for summary dismissal given that Alberes' alleged exposure to asbestos at the GOODRICH plant was for a mere FIVE DAYS out of a claimed 53 years of working multiple different jobs for multiple different construction employers, and thus could not have constituted the required "substantial contributing factor" to the development of Alberes' alleged asbestosis. However, the Louisiana Court of Appeal reversed that decision stating that such was a matter to be determined by a trier of fact. Outcome unknown, but what this decision probably meant was that GOODRICH likely was forced to "settle" with Alberes. Edward Alberes, of Belle Rose, Louisiana, died "prematurely" in 2017, at the age of 79.
TINA R. CONCEPCION v. CITY OF NEW YORK ET AL was a 2015-16 New York federal employment discrimination lawsuit filed by a female African-American Jehovah's Witness named Tina Concepcion, age 49, who currently is a Level I Procurement Analyst with the NYC Department of Transportation, since 2008. Concepcion alleged that she was discriminated against on the basis of her African-American race, gender, national origin, age, color, Jehovah's Witness religion, and disability, and that she was retaliated against for her complaints, in violation of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the New York State Human Rights Law and the New York City Human Rights Law. Concepcion filed an EEO complaint with NYCDOT in June 2014, filed a federal complaint with the Equal Employment Opportunity Commission in November 2014, and filed this federal lawsuit in March 2015.
In January 2016, the USDC summarily dismissed with prejudice ALL of Concepcion's federal claims, but dismissed without prejudice her state claims given that state court is the more appropriate forum. The USDC opinion was lengthy, but we are including some scattered excerpts which seem to highlight this case:
"Concepcion alleges that she has been denied a promotion, training, performance evaluations, the opportunity to work overtime hours, Family Medical Leave Act ... time, a workers' compensation grant, and reasonable accommodation for her disabilities. ... Concepcion has never heard any disparaging comments about her race, ethnicity, gender, age, disability or religion at work. ... Her only proof of discrimination is that she was not promoted or given training.
"Concepcion's alleged disabilities are to her back, neck, right hip, legs, hands and right arm. ... Concepcion's EEOC complaint identifies her disability as 'limited mobility-back, walking, lifting.' ... Beyond the bare allegations in her complaint, and testimony that her various disabilities cause pain ..., Concepcion has presented little evidence as to what her impairment is, or how it substantially limits a major life activity. Notes from Concepcion's doctor, Dr. Patel, indicate that Concepcion's disability 'requires' use of 'a private automobile for transportation.' ... Dr. Patel indicated that Concepcion has 'painful ambulation' and could walk for only five minutes before she would require a rest. ... Dr. Patel noted that Concepcion 'cannot stand or walk for periods of time deemed "normal."' ... Concepcion's [own] testimony, however, contradicts Dr. Patel's findings. ... (to relieve her hip pain Concepcion gets 'up to walk'); ... (Concepcion does not need her cane every day to assist with walking); ... (Concepcion walks twenty blocks to and from her parking space each day). ... .
"The City further asserts that under the Rules of the City of New York, Concepcion is not eligible for a disability parking permit because her ailments do not 'qualify under any of the categories of conditions which constitute "a permanent disability seriously impairing mobility."' ... the DOHMH doctor who assessed Concepcion's eligibility determined on July 30, 2014 that Concepcion was not eligible for a disability parking permit for that very reason.
"Concepcion asserts that a March 24, 2015 fine imposed for her failure to timely report a June 19, 2013 arrest to the DOT ... also was retaliatory ... .
"Concepcion similarly asserts that the 'agency reported to Advocate office various unjust complaints, tried numerous times to terminate [her].' ... Concepcion's own submissions are replete with examples of occasions on which she was reprimanded by her supervisor. ... (8/15/12 reprimand for failure to follow time sheet protocol); ... (10/3/13 reprimand for 'perpetual lateness'); ... (8/7/13 reprimand for 'harsh and unprofessional verbal insult'). ... Concepcion asserts that this 'work place harassment and retaliation' ... is due to the fact that she signed her 2013 performance evaluation 'in protest' ... ."
TINA R. CONCEPCION v. NYC POLICE DEPARTMENT, NYC DEPARTMENT OF EDUCATION, ET AL is an ongoing 2015-16 New York federal lawsuit. Filings appear to indicate that this lawsuit relates to the arrest of Concepcion's son at Curtis High School in February 2015.
TINA R. CONCEPCION v. JP MORGAN CHASE ET AL is an ongoing 2015-16 New York federal lawsuit. Filings appear to indicate that this lawsuit relates to the financing of Concepcion's Staten Island condominium.
CLARINDA LOUISE JOHNSTON v. SOCIAL SECURITY ADMINISTRATION was a 2014-15 California federal court case in which an African-American Jehovah's Witness named Clarinda L. Johnston, age 56, sought reversal of the SSA's denial of her 2005 application for physical disability benefits. (Johnston's application apparently did not include any claim of "mental" disability despite the fact that Clarinda Johnston testified that she had been psychiatrically hospitalized "three or four times" since 1990.) The USDC affirmed the SSA's decision, stating in part:
The [Administrative Law Judge] found plaintiff's subjective complaints less than fully credible. He concluded that plaintiff's subjective complaints of totally disabling neck and back pain, headaches, and anxiety were not fully corroborated by the objective medical evidence. ...
The ALJ also noted that some of plaintiff's admitted daily activities undermined the credibility of her subjective complaints. During the December 2012 hearing, plaintiff testified that she was a Jehovah's Witness. She said that she still attended meetings, although she "missed a lot," that she had been doing door-to-door witnessing regularly (three times a week for about three hours a day) during the alleged disability period and had only stopped doing it regularly about nine months earlier, and currently did phone witnessing when she felt up to it. ... She watched television, went shopping twice a month with her husband, and drove to one of the hearings. ... Although those activities are not necessarily transferable to a work setting, they are "grounds for discrediting [plaintiff's] testimony to the extent that they contradict claims of a totally debilitating impairment." ... .
JOSEPH E. DUNCAN v. CIGNA LIFE INSURANCE COMPANY OF NEW YORK was a 2010-13 New York federal lawsuit filed pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), alleging that CIGNA failed to pay him long-term disability benefits for a knee injury under an employee welfare benefit plan. CIGNA's motion for summary judgment was granted in December 2011. In a de novo review, the USCA affirmed in January 2013, holding that "there is substantial evidence to support CLICNY's denial of benefits."
In part, Joseph Duncan alleged that CIGNA violated his rights to religious freedom by conducting surveillance on Duncan's ministering activities as a Jehovah's Witness. The USCA held, in part:
"Finally, Duncan alleges that CLICNY violated his religious freedom by "target[ing]" his religious activities. Duncan fails to allege that CLICNY is a state actor, and in any case, conducting surveillance while Duncan performed his pastoral duties as a Jehovah's Witness did not violate his religious freedom. CLICNY's focus was not on Duncan's religious activities, but rather on his ability to walk for prolonged periods, carry items, and drive longer distances. The surveillance videos show far more than the periodic church attendance at issue ... ."
CROWN v. BARTOSZ GAJEWSKI are ongoing 2009-13 Ontario, Canada criminal case and mental capacity proceedings which involves a mentally ill Jehovah's Witness suffering from "persecutory delusion" disorder (surprise, surprise). Bartosz Gajewski is a 42 year-old, unmarried male who immigrated to Canada from Poland, in 1989, when he was 18. In the early 2000s, BG began to exhibit behaviors which resulted in his mother and brother filing for involuntary commitment and assessments at least twice. These events led to an estrangement between BG and his family.
In December 2002, the 31 year-old BG, who had been employed as a cabinet maker for several years, began performing a series of renovations at the home of his employer. It was during these renovations that BG bcame acquainted with the employer's daughter, Katherine Newman. By August 2003, BG had formed the false impression that Katherine Newman was romantically interested in him. As a result of this delusional belief, BG requested that KN arrange for him to speak to her father, without specifying the nature of his concerns. KN's father telephoned BG, who informed father that KN was interested in a romantic relationship with him, but he was not interested in her. Without knowing exactly what KN's father said back to BG, we do know that BG quit his job shortly after that telephone conversation. In September 2003, BG again contacted KN, and demanded that she stop "doing what she was doing". BG was thereafter charged with criminal harassment and threatening death. In November 2003, BG was involuntarily admitted to a psychiatric facility based on testimony from his JW mother and brother. They indicated that BG had begun stalking KN. BG refused treatment.
In March 2004, the September 2003 charges were withdrawn when BG entered into a Peace Bond for one year. BG promised not to have any contact with KN, or her father, or to return to his former place of employment. In September 2004, BG appeared before a Justice of the Peace and unsuccessfully sought to press charges against KN, her father, and 16 other "co-conspirators". BG testified that, in 2002, KN fell in love with him and started a vicious circle of control that she tried to exercise over BG by infiltrating every part of his life -- financial, family, religious, etc. BG claimed that KN started studying the Bible with Jehovah's Witnesses, and had tried to forcefully bring BG back into the "Christian congregation". BG testified that he had written a number of letters to the RCMP, the Crown Attorney's Office, and others, informing them of what happened, and that he had been falsely accused and prosecuted without any reason.
In 2007, BG received notice of garnishment for tax arrears of $22,000,00, plus interest and penalties. BG believed that KN, her father, and others had somehow conspired to trigger the garnishment for taxes, which BG did not believe that he owed. In September 2009, BG began to take action against KN for what he perceived to be her involvement in falsehoods leading to the 2007 tax assessment. BG studied the Criminal Code and decided that his only alternative was to arrest KN himself (BG believed the police were also participants in the conspiracy against him), and to provide the evidence necessary to exonerate him on the tax arrears.
In September 2009, BG went to KN's home, where he waited until she arrived home. BG pulled KN out of her car, and dragged KN and her business partner, who was trying to rescue KN, about 130 feet down the street to his parked car -- all the while proclaiming that he was placing her under "citizen's arrest" pursuant to the Criminal Code and in the name of "Jehovah God". BG was stopped by police who had been called by neighbors. The police later found duct tape, nylon ties, and an Exacto blade when they searched his home -- where BG had planned on detaining KN until he could turn her over to authorities. Interestingly, after his arrest, BG contacted an unknown Jehovah's Witness in an attempt to have them remove certain items from his apartment. During his later assessments, BG also seemed to indicated that he had discussed with a "brother" his plans on making the "citizen's arrest", and had been warned to be careful.
At a January 2011 criminal proceeding, BG pled guilty to assaulting Katherine Newman and attempting to kidnap her with intent to cause her to be imprisoned against her will, and was convicted for such. However, BG's mental capacity was assessed and he was found not criminally responsible for his actions due to mental illness. BG was thereafter held in the minimum security rehabilitation unit at a Toronto psychiatric facility. BG's attending physician also found him incapable to consent to certain treatment. After a 2012 mental capacity hearing, the Ontario Review Board ruled that, "Mr. BG's fixed, false beliefs that Jehovah would intervene to prove the diagnosis of mental disorder false, and that Ms.KN deserved punishment, acted in concert to prevent Mr. BG from either understanding relevant information about treatment, or applying it to his own circumstances. He viewed the world through the lens of his mental disorder, the nature of which prevented him from passing either of the branches of the test for capacity to consent to treatment. ... For the foregoing reasons, I upheld the finding that he was incapable of consenting or refusing consent to treatment with anti-psychotic medications, both orally and by injection." Appeals relating to BG's mental capacity and his treatment continue.
2016 UPDATE: BG has been institutionalized since 2011 at the Centre for Addiction and Mental Health. BG has continuously fought such in the courts. For most of his time at CAMH, BG refused to take anti-psychotic medications or participate in rehabilitative programs. BG denied having a mental illness and told doctors he believed he was being held without cause and would eventually be "vindicated" (a common term used by Jehovah's Witnesses who have all been taught that JWs -- both as a group and as individuals -- suffer various forms of persecution which need "vindicating".) In May 2015, BG told a psychiatrist that "the Newmans are hiding stuff ... . In time Jehovah will uncover their wickedness." Despite such, starting in mid-2015, BG has been permitted to spend 8 hours per day outside at his JW Mother's home., and CAMH is even recommending that beginning in mid-2016 that BG be granted full-time supervised release.
PATRICIA BLEDSOE v. TENNESSEE DEPARTMENT OF MENTAL HEALTH was a 2010 Tennessee federal court case. An African-American female Jehovah's Witness Employee, named Patricia Bledsoe, alleged failure to promote (racial), hostile work environment (including because of her religious beliefs), and retaliation against her state government employer, for whom she worked as a secretary from 2000 until 2009. Pat Bledsoe also alleged additional claims of negligent and intentional infliction of emotional distress under Tennessee law.
The USDC granted Tennessee's motion for Summary Judgment on all federal law claims, and dismissed the associated state law claims. The lengthy USDC opinion notes, in part:
Scott Lindsey ... was assigned by the Tennessee Department of Mental Health to investigate Plaintiff's complaints about unlawful discriminatory practices at MMHI. ... Lindsey is an African-American male. ... According to Lindsey's report, there were four Administrative Assistants 1 appointed or promoted since Ventura and Slate were hired in October 2003 and February 2004 ... . Three of the four were African-Americans like Plaintiff. ... ... ...
... On March 17, 2006, Plaintiff received a written disciplinary warning for breaching employee confidentiality by showing another MMHI employee her employee performance review before the other employee's supervisor had shown it to her. ... Plaintiff initially lied to Slate and claimed that the fellow employee accidentally noticed the review on Plaintiff's desk. ... Slate found Plaintiff's dishonesty regarding the incident to be disturbing. ... Then on September 25, 2008, Plaintiff admitted that she was sleeping while at work and was issued a written warning by her supervisor Lisa A. Daniel. ...
In a separate disciplinary matter, Slate admonished Plaintiff for selling stolen cigarettes off the back dock of MMHI, which Plaintiff admitted and apologized. ... Plaintiff states that she only reported another person who was selling and denies that she was selling the cigarettes. However, Plaintiff later admits that Ventura advised her not to sell cigarettes on MMHI grounds as that was in violation of the "no solicitation" policy of the hospital. In another incident, Slate counseled Plaintiff for selling perfume at work, which she also admitted and apologized. ... ...
Plaintiff has a history of substance abuse. As of August 2007, Plaintiff had received treatment for alcohol abuse nine times. ... For example, in October 2002, Plaintiff was treated at the Memphis Veterans Administration Medical Center ... for a relapse of alcohol abuse and crack usage after two years of sobriety. ...
Plaintiff also has history of psychiatric problems. Plaintiff was first diagnosed with mental health issues in August 2007. ... During an inpatient admission, Plaintiff was diagnosed with generalized severe anxiety, depression, and substance abuse of alcohol and crack cocaine. ... Plaintiff continued to experience problems in 2008. On October 8, 2008, Plaintiff was admitted to the VAMC after experiencing suicidal thoughts and ingesting ten Tylenol tablets. ... At that time, Plaintiff reported regularly ingesting large amounts of BC powder, drinking a quart or more of beer daily, and smoking crack as often a she could buy it, which was daily by that time. ... Also at that time, Plaintiff was unstable and had been off of her psychiatric medications and had not seen her physicians for six months. ... Plaintiff reported that the source of her stress was dealing with a cancer diagnosis in the family, coping with a death in the family, and job and marriage issues. ... Nursing notes from Plaintiff's October 2008 hospital stay described Plaintiff as "somewhat delusional and paranoid." ... Plaintiff's history, as she reported it during her October 2008 admission, included mental and verbal abuse; an attempted rape while in the Army from 1979 to 1982; alcohol, cocaine and marijuana abuse; workplace conflict; and concern for her two sons. ... Plaintiff believed that this combination of stressors led to her suicide attempt. ... In December 2008 Plaintiff informed her supervisor that her thinking was confused and that she was paranoid and afraid. ... ... ...
DEAN CARYDAKIS v. TRANSPORT ACCIDENT COMMISSION was a 2005 Australia administrative tribunal proceeding which involved a 23 years-old "disabled" Jehovah's Witness named Dean Carydakis. This proceeding related to Carydakis's disability status and inability to return to gainful employment as the result of two auto accidents -- one in November 2000, when he was 18 years-old, and the second in December 2001, when he was 19 years-old.
At this proceeding, Dean Carydakis was appealing two previous Commission decisions. In October 2002, Carydakis was advised that his entitlement to loss of earnings and loss of earning capacity benefits would cease in December 2002, on the basis that the Commission considered that he was fit to return to his pre-accident employment duties. In January 2003, the Commission had informed Carydakis that his entitlement to physiotherapy, chiropractic or osteopathic treatments would cease in January 2003. In April 2005, the Tribunal remanded the Commission's 2002 decision for re-consideration, but affirmed the 2003 decision.
In making these decisions, the Tribunal documented several "interesting" facts and observations. One was that while Carydakis had made no attempt to return to employment, Carydakis had gotten married and had managed to father three children since April 2002. Additionally, Carydakis still managed to regularly attend his local Kingdom Hall, as well as perform door-to-door visitations. In fact, Carydakis was video surveilled on two days in November 2002. However, Carydakis spotted the investigator, and even waved to him. That November 2002 footage showed Carydakis "limping and hip-clutching". Followup video surveillance was conducted 18 months later in May and June 2004. That footage showed Carydakis "walking normally, getting in and out of cars, and by the time of his visit to the Kingdom Hall on 13 June 2004, he was positively sprightly."
ELLIS LEATON v. NAVAJO REFINERY is a still ongoing 2010 New Mexico federal court case in which the defendant's motion for Summary Judgment was denied. Ellis Leaton, a Hispanic Jehovah's Witness, was employed by defendant as a refinery worker from 1998 until November 2007, when Leaton was terminated.
During his nine years of employment with Navajo Refining, Plaintiff progressed from an entry level position to manning one of the refinery's control boards as a "B Operator". Plaintiff was diagnosed with diabetes in 2001, which affected his ability to work, sleep and walk. In 2003 and 2004, during his time as a "C Operator", Plaintiff was counseled for several incidents involving over-pressuring and flaring. In response to these incidents, Defendant offered Plaintiff counseling and medical evaluation and, in 2005, Plaintiff took three months of paid medical leave for treatment of his diabetes. After returning from leave, Plaintiff began training for a promotion to B Operator, which he completed in August 2005. However, because of an incident involving the improper opening of a valve, which constituted a safety violation, he was placed on probation for six months.
In November 2006, Plaintiff was promoted to B Operator. Soon thereafter, on December 28, 2006, Plaintiff received a written reprimand for sleeping on the job. Plaintiff provided medical documentation to support that his medical condition and medicine was a contributing factor, and that he was required to work a sixteen hour shift on that day. On February 28, 2007, Plaintiff received a ten-day suspension for sleeping on the job, and other performance issues involving carelessness, unsatisfactory work quality, and rudeness to other employees. As a result of these issues, Plaintiff received a last and final warning.
On May 22, 2007, as a result of mediation of his grievance over that disciplinary action, Defendant agreed to remove the disciplinary action from his record as long as he did not violate any other work rules in the next two years. In June and July 2007, Plaintiff took paid leave to undergo stomach bypass surgery, which he felt would improve his health and work performance, including making sleeping on the job less likely.
Plaintiff returned to work as a B Operator in August 2007. On October 8, 2007, while Plaintiff was operating the control board, a tower became over-pressured and released a flare. Although alarms were sounding to indicate the unsafe condition, Plaintiff made no adjustments, and an A Operator had to take over the control board and reduce the pressure. Soon thereafter, on October 20, 2007, another over-pressure incident occurred in which Plaintiff allegedly failed to respond with corrective action. Then, on October 24, 2007, another flaring incident occurred. In this instance, alarms warning of over-pressure had sounded for more than thirty minutes before the flare occurred. Plaintiff was on duty that day, and had relieved another B Operator during the approximate time period that the flaring incident occurred. Plaintiff claims that he was not responsible for this incident, and those responsible were never disciplined. Ostensibly as a result of the three tower flares on October 8, 20, and 24, Plaintiff was placed on administrative leave on October 30, 2007, pending review of the incidents. While on administrative leave, Plaintiff made a report of discrimination to Defendant's attorney. Plaintiff claims that immediately thereafter Defendant initiated a "frivolous" investigation against Plaintiff.
On November 20, 2007, while still on administrative leave pending investigation into Plaintiff's response to the three flaring incidents, Plaintiff filed a Charge of Discrimination with EEOC and the New Mexico Human Rights Bureau based on his national origin (Hispanic), disability (diabetes), and religion (Jehovah Witness).
Ten days after Leaton filed his charge of discrimination, Plaintiff's employment was terminated. Navajo Refining and the International Union of Operating Engineers, Local # 351 had previously executed a Collective Bargaining Agreement covering the terms and conditions of employment for the bargaining unit members. Plaintiff was a member of the bargaining unit. On December 6, 2007, Plaintiff filed a termination grievance with the Union, which was denied on December 10, 2007. Plaintiff appealed this denial, and requested binding arbitration, which was conducted through the Federal Mediation and Conciliation Service on September 11, 2009.
While Leaton's appeal was pending, he filed a suit in state court, again alleging discrimination based on national origin, disability, and religion. His state court complaint stated claims for disability discrimination under the Americans with Disabilities Act and the New Mexico Human Rights Act, claims for religious discrimination under the NMHRA and Title VII, and national origin discrimination under the NMHRA and Title VII.
Prior to filing his complaint in state court, on June 24, 2008, Plaintiff filed another charge with the EEOC and NMHRB, this time alleging retaliation for filing his earlier charge as well as discrimination based on age. On January 20, 2009, Plaintiff received a Dismissal and Notice of Right to Sue from the EEOC based on this second charge. On April 20, 2009, Plaintiff filed his underlying complaint in this action, claiming retaliation and age discrimination.
On September 17, 2009, the state court stayed proceedings in its case pending the arbitrator's decision. On December 2, 2009, the arbitrator issued a decision denying Plaintiff's termination grievance. Specifically, the arbitrator found: (1) no evidence that Defendant's disciplinary action against Plaintiff was based on race, religion, or disability, in part because Plaintiff admittedly presented no evidence of any such discrimination; and (2) that Defendant's "use of progressive discipline in attempts to correct [Plaintiff's] performance deficiencies provided just cause for his termination." On July 9, 2010, the state court granted summary judgment to Defendant, finding that the arbitrator's decision on the race, disability, and religion claims is binding on the parties in state court.
IN RE UNIDENTIFIED CANADIAN JW EMPLOYEE was a 1989-2001 (probably still ongoing) Ontario, Canada worker's compensation administrative proceeding. JW, who had attended school for only about 3-4 years, immigrated from Portugal to Canada in 1986, when he was 27 years-old. In April 1989, JW worked for Employer for all of two months before suffering a lower back strain, which JW claimed was caused by a co-worker. JW never returned to work, and has not been employed since.
JW was awarded a provisional 15% pension for "chronic pain disability" in April 1991, despite the fact that the examining physician described his interview with JW, during which he was able to walk, bend, and squat with little effort, as "colourful", "dramatic", and that JW "was presenting with quite pronounced histrionic features, magnification, overreaction and with pain behaviour". That 15% award was confirmed in 1993, and made permanent in January 1996. In 2000, JW failed in his effort to have his pension increased. In 2001, that decision was upheld on appeal.
At the 2000 hearing, JW claimed that he suffered constant pain of varying intensity. Some days, JW could manage to walk for over an hour, while on other days, he was unable to walk for more than five minutes. JW said that he had become an angry person, and that he has fits of rage with his wife and young children. (Notably, JW somehow managed to father three daughters between 1988 and 1990.) In addition, JW said that he suffered from both anxiety and depression. Daily living activities were somewhat restricted, but JW managed to assist with household chores and meals while his wife worked at her part-time housecleaning job. JW was described as a devout Jehovah's Witness who spent much time reading WatchTower literature, and who regularly attended all three weekly meetings at his local Kingdom Hall. JW even somehow managed to go out in field service once per week.
STATE BOARD OF CHIROPRACTIC EXAMINERS v. EDWARDS was a 1998-2000 case before Missouri's Administrative Hearing Commission. The State Board of Chiropractic Examiners filed a complaint on May 26, 1998, seeking the Commission's determination that Gary F. Edwards' license to practice chiropractic be subject to discipline as a result of Edwards treatment of a patient named Duane Troyer. The Board's allegations included incompetency, gross negligence, misconduct, and practicing medicine.
Gary F. Edwards, was a Jehovah's Witness Chiropractor, who did business in Independence, Missouri, as Edwards Back & Neck Care Center. This case arose out of Gary Edwards' treatment of a Mennonite farmer, named Duane Troyer, starting in April 1990. Apparently, this Jehovah's Witness Chiropractor had developed a relationship of trust with many members of Missouri's Mennonite and Amish communities. Duane Troyer's parents and a grandmother had been patients of Edwards, and they referred Duane to Edwards. In October 1996, The Kansas City Star published an article which explained why many Mennonites and Amish sought out Gary Edwards:
"Medical science has produced many wondrous machines, but none was more alluring to the region's Mennonite or Amish communities than the one in Gary Edwards' Independence chiropractic office. Typically, the patient was ushered into an examining room where the chiropractor talked over any symptoms and then switched on what patients say he called "the Interro" or "the nutrition machine." Several independent accounts produce the same description: a computer screen and keyboard attached by wire to a stubby pencil-shaped probe.
But the machine wasn't used on just anybody. "If a doctor or anybody but the Mennonite families asked about it," said Michelle Moore, who worked briefly for Edwards as a file clerk, "I was to say that it didn't exist." It was a special machine, she said, for special people.
Edwards would touch the probe to points on a patient's hand, acupuncture-style, Amish patients said. Supposedly the Interro detected the body's electrical impulses. The computer software, in theory, measured those impulses to see how well various organs in the body worked. The diagnosis was instant. And completely worthless. The Interro does not work. It can treat nothing. It can make no valid diagnosis."
[Readers interested in the use of "quack" medical devices by Jehovah's Witnesses at WatchTower Society world headquarters, should click HERE.]
Duane Troyer was a hemophiliac who had contracted AIDS from contaminated blood in 1984. When Troyer learned that he was HIV positive, in April 1989, Duane was engaged to be married to fellow Mennonite, Regina Hershberger. Duane and Regina Troyer were married on September 15, 1989. During the period of preparation for their Mennonite wedding, their religious leaders conducted an anointing ceremony, and prayed for Duane to be healed. Although the couple believed that God could heal Duane, they followed all precautions as recommended by Duane's medical doctor. Duane and Regina understood that they must use a condom and contraceptive foam during sex, in order to guard against transmitting the virus to Regina, and that they must take precautions with regard to Duane's blood, and that they would NOT be able to have children.
Duane and Regina Troyer first visited Gary Edwards on April 3, 1990. Duane informed Edwards that he was HIV positive and wanted to know if there was anything that Edwards could do to help him. During that first visit, Edwards did not conduct any physical examination or chiropractic evaluation of Duane, other than the following. Although Edwards had never treated an HIV patient before, Edwards explained the use of his "Interro machine", which was a version of an Electro-Accupuncture According to Voll (EAV) machine, named after Reinhard Voll, the man who pioneered the use of such techniques. Edwards attached a probe to Duane's fingers and toes. The probe was connected to a computer, which measured the electrical energy levels of certain body organ systems. Edwards' version of the Interro was an advanced model that not only diagnosed a patient's problems, but also assisted in the preparation of a homeopathic remedy. Edwards placed a bottle on top of the Interro while operating the machine. The bottle contained distilled water and gin. According to EAV theory, the machine places an electrical charge in the water, and the alcohol is necessary to hold the charge. The charge is meant to correct an electrical imbalance in the body. Edwards gave the bottle to Duane and told him to place 10 drops under his tongue three times per day, after slapping the bottle on the palm of his hand. Based on the Interro's readings, the computer printed a list of suggested vitamin, mineral, and herb supplements, which Edwards also gave to Troyer. Edwards represented to Duane and Regina that the object of his treatment was to bring the body's systems into balance, and allegedly, that his treatment could eradicate the HIV from Duane's body, which Edwards later denied saying.
On May 1, 1990, Duane again visited Edwards' office. Edwards again used the Interro, which indicated improvement, to formulate additional drops and suggest additional supplements. Duane visited Edwards' office again on August 7, 1990. His condition was better than at the previous visit. Duane reported stiffness in his neck and back. Edwards performed a chiropractic adjustment on Duane, used the Interro machine, and gave Duane more drops and supplements. Edwards allegedly stated that he would be able to eradicate the HIV. Regina allegedly asked if she and Duane could have children when Duane's body eradicated the HIV, and if Edwards and his wife would have children if they were in Duane and Regina's position. Edwards allegedly replied that he would proceed to have children if he were in their position because Duane's body had gotten rid of the virus and it was not transmittable to anyone, which Edwards later denied saying.
Duane visited Edwards' office on September 25, 1990. Duane and Regina were moving to Montana at that time. Edwards used the Interro, which indicated that Troyer's body's systems were close to balance, but gave Duane more drops and more supplements. On November 12, 1990, Duane visited Edwards office while he was in Missouri for a short visit to tend his farm. Edwards drew blood for an HIV test and sent it to a lab. Duane returned to Montana. The test showed that Duane remained HIV positive.
Edwards called and reported the test results to Regina Troyer on November 20, 1990, because Duane was en route back to Montana at the time with Regina's parents. Allegedly, Edwards told Regina that the HIV test was negative, and that the HIV could not be transmitted to her. When Duane and Regina's parents arrived in Montana, Regina told them about her conversation with Edwards. Elizabeth Hershberger was skeptical that Duane's HIV had been eradicated. She called Edwards when she returned home to Missouri the first week of December. Edwards allegedly told Elizabeth Hershberger that he was absolutely certain that Duane's HIV had been eradicated, and that Duane could not transmit HIV to Regina, and that if Duane and Regina had a child, the child would be healthy. Allegedly, Edwards also placed a call to Duane's parents' home on November 21, 1990. Duane and Regina never had unprotected sexual relations prior to November 20, 1990. However, based on Edwards telephone calls, the couple believed that it was no longer necessary to practice safe sex.
On August 29, 1991, Duane visited Edwards' office. Edwards used the Interro, which indicated that Troyer's body was nearly in balance, but gave more drops and more supplements. Edwards allegedly stated that the HIV was eradicated. Edwards indicated that Duane should return in 12 months.
Regina Troyer's mother, Elizabeth Hershberger, made two telephone calls to Edwards' office on November 2, 1991. Elizabeth had learned that Regina was pregnant and wanted to find out if Regina would be OK. Edwards made an 11-minute collect call to the Hershberger residence on November 5, 1991. Allegedly, Edwards assured Hershberger that there was no risk to Regina. In her Christmas letter in 1991, Elizabeth announced that Regina was pregnant and that the couple's "homeopathic doctor" said there was no risk from HIV.
Regina Troyer gave birth to a daughter on May 20, 1992. Duane and Regina had moved back to Missouri by that time. Both Regina and the baby tested HIV positive. After the birth of his daughter, Duane's health rapidly deteriorated. At the urging of his parents and grandmother, Duane again visited Edwards' office on July 31, 1992. Edwards drew blood and took a hair sample, and sent them to a lab for analysis. Edwards also did an chiropractic adjustment and diathermy, and gave Duane a supplement. Regina later alleged that she overheard Edwards tell Duane that his illness and symptoms had nothing to do with AIDS.
On August 12, 1992, Duane was admitted to Audrain Medical Center in Mexico, Missouri, and was diagnosed with pneumonia and AIDS. At Duane's request, the hospital released him to go home on August 15, 1992. Later in August 1992, Duane was taken to the hospital in Brookfield, and was then transferred to Columbia. Doctors diagnosed meningitis and a possible tumor in his brain, which were complications of AIDS. Because no treatment would be effective, the doctors sent Duane home to die. Duane Troyer died on September 5, 1992. Regina Troyer and her daughter were still alive as of late 1999, and were receiving medical treatment for their HIV conditions.
Quite interestingly, Duane Troyer's Mennonite father, David Troyer, who had been, and possibly still was, a patient of Gary Edwards, testified in 1999 to his recollection of events back in 1990-1. David Troyer stated that he accompanied Duane and Regina on visits to Edwards' office couple of times. David Troyer stated that he never heard Edwards state that he could cure HIV, and that Edwards stated that he couldn't cure anybody, but he could make their life more pleasant.
The Commission made findings of fact that Gary Edwards represented that: (1) Edwards' treatment could cure HIV/AIDS, (2) Duane Troyer had been cured, and, (3) Duane Troyer's later symptoms had nothing to do with AIDS.
With regard to the Board's charge of "incompetency", the Commission ruled, in part: "By attempting to cure HIV/AIDS, representing that Duane was cured, and failing to recognize that chiropractic was an inadequate and ineffective means for treatment of HIV/AIDS, Edwards demonstrated incompetence."
With regard to the Board's charge of "misconduct", the Commission ruled, in part: "By representing that he could cure HIV/AIDS and that the condition was cured, Edwards committed misconduct."
With regard to the Board's charge of "gross negligence", the Commission ruled, in part: "Because we have concluded that Edwards acted with wrongful intent rather than with mere recklessness, he is not subject to discipline for gross negligence."
With regard to the Board's charge of "fraud, misrepresentation, and dishonesty", the Commission ruled, in part: "Edwards made false statements in order to make Duane and Regina pay him for the Interro treatments and drops. Further, he did not tell Duane and Regina that the brown bottles contained nothing but gin and water. Therefore, he is subject to discipline for fraud, misrepresentation, and dishonesty."
With regard to the Board's charge of "practicing medicine", the Commission ruled, in part: "... Edwards went beyond providing nutrition by prescribing or administering a medicine and attempting to practice medicine ... ."
In February 2000, Missouri's Administrative Hearing Commission ruled that Gary Edwards could be disciplined by Missouri's State Board of Chiropractic Examiners. In May 2000, the Board revoked Edwards' license to practice chiropractic, with imposition of revocation stayed pending Edwards' successful completion of a two-year suspension and a subsequent five-year probationary period.
However, in April 2002, on appeal from Gary Edwards, the Missouri Court of Appeals ruled that the Board's fact-finding body had erred by not allowing Edwards to have access to certain evidence during the discovery process, and reversed the Commission's decision, and remanded the case for further proceedings. DECISION. The Board subsequently withdrew its complaint against Edwards when Missouri's Supreme Court refused to hear their appeal on the reverse and remand.
EDWARDS v. GERSTEIN ET AL. Thereafter, Edwards filed a new lawsuit alleging that members of the Missouri Board of Chiropractic Examiners acted with gross negligence during the board's disciplinary proceedings against him, and alleging that a board employee engaged in malicious prosecution during her investigation of claims against Edwards. After venue in the case was moved from Jackson County to Cole County, the circuit court ultimately dismissed Edwards' suit, finding the board members were entitled to quasi-judicial immunity and that the board employee was immune from suit under the official immunity and public duty doctrines. Edwards appealed, but lost at the Court of Appeals level in December 2006. However, in October 2007, Missouri's Supreme Court reversed in part, and remanded for further proceedings on Edwards' charge of "gross negligence", from which the court ruled that the Commission members and employee were not immune (did not mean they were -- just that the charge could be heard). Outcome of any 2008 proceedings unknown.
In August 2010, a Cole County jury ruled in Edward's favor and awarded Edwards $6,284,759.00 against the individual board members. In January 2012, on appeal to the Missouri Court of Appeals, the the lower court's decision and award was affirmed. Unknown if appealed to Supreme Court of Missouri.
TARR ET AL v. EDWARDS was a 1999 Missouri civil court case. Incomplete details. In May 1999, three females filed a civil lawsuit against the Jehovah's Witness Chiropractor, Gary F. Edwards, alleging inappropriate sexual behavior. Sandra Tarr, a former employee, claimed that Edwards sexually harassed her by touching her, hugging her, kissing her, and rubbing up against her body. Leslie Tuttle and Michelle Brown, both patients of Gary Edwards, alleged that objectionable behavior occurred while they were being treated at Edward's Independence, Missouri chiropractic office. Edwards denied the allegations. Outcome of this civil lawsuit is unknown. Unknown if criminal charges were pursued.
Per the Fall 1997 issue of DME MEDICARE NEWS, a Montgomery County, Pennsylvania Chiropractor, named James N. Roebuck, then age 45, had been "indefinitely" suspended by the federal government from participating in the federal Medicare Insurance Program, effective February 1997. James N. Roebuck, Jr. is the son of well known Jehovah's Witness Chiropractor, James N. Roebuck, Sr., who not only treated JWs throughout the greater Philadelphia area for 40 years, but reportedly was "Chiropractor-to-the-stars" at the International HQs of the WatchTower Bible and Tract Society. Dr. James Roebuck, Sr., died in 1995, while performing services at the WatchTower Society's large Patterson, New York complex. James N. Roebuck, Sr. also traveled for years on behalf of the WatchTower Society, serving as "Chairman's Assistant" and "Purchasing Supervisor" at numerous WatchTower Conventions around the United States. Curiously, when doing PR media interviews at these conventions, Roebuck would "profession-drop" that he was a Chiropractor, but he would then indicate that he was performing various non-medical services at that convention.
On October 26, 2005, an Iranian Jehovah's Witness, named Shokrollah Shafiee, 55, of Naples, Florida, was crushed and died in a construction accident at the Naples Heritage Golf and Country Club, while the 55 year-old man was working as an hourly laborer for a construction firm hired to repair a retaining wall damaged by Hurricane Wilma.
Shokrollah Shafiee, reportedly an Iranian citizen, relocated from Miami to Naples in the mid-1990s, after he supposedly either separated or divorced from his wife, Joyce Shafiee. It is unclear at what point in time that Shokrollah Shafiee became a Jehovah's Witness, but John Waight, a Congregation Elder at the East Naples Kingdom Hall of Jehovah's Witnesses characterized the hourly construction laborer as "one of our learned individuals", who reportedly had at some point spent one full year as an "Auxiliary Pioneer" doing door-to-door recruiting for the JWs. The hourly construction laborer also was known to be a regular monthly financial supporter of the JWs.
Elder John Waight also reported that Shokrollah Shafiee "kept to himself": "He wasn't a social person. You had to twist his arm to come to dinner." In fact, rather than attending an English-speaking congregation, Shafiee attended one of Naples Spanish-speaking Congregations of Jehovah's Witnesses. At the time of the accident, Shokrollah Shafiee was also attending full-time night classes at a local vocational school, where he studied "Patient Care Technology". Interestingly, the hourly construction laborer was a "straight A student", whom his classmates referred to as "The Professor". Shokrollah Shafiee reportedly had no children, but reportedly did have a brother and possibly other relatives living along Florida's eastern Gold Coast.
"I approached the open garage door area - heard an electric saw being used in the basement area. I called out Ray's name, remaining outside the garage. Ray entered the garage from the basement area. Ray was perspiring and wiping his hands on a rag. At this point the saw stopped running. I told Ray I was aware he had reported off sick using his FMLA certification this morning, and asked him to explain how his absence for his precertified illness related to his performance of construction work on his new home. Ray said he had been sick that morning. At this point his wife entered the garage area from the street. She added that he had diarrhea in the morning. I told Ray that since he was no longer ill, he would be expected to report to work for the remainder of his tour. Verizon's expectation is that when you are too ill to work, you should remain at home, but once you are well, you would report to work. Ray asked what he should do and I advised him it was his decision but that he could choose to report to his work location for the balance of his tour. I also advised Ray that at this point he would not be paid for today's absence, and an investigation will ensue. Ray asked what would happen - I told him this would be investigated under the Code of Conduct. His wife said that he would be contacting the union; she also said Verizon, and me in particular, had been rude to her husband, as well as his doctor's office. She explained this was in reference to a conversation in the past between me and a nurse at his dr. office concerning the wording of his medical restriction. At that point I told Ray that I had nothing further to add today, and I departed."
"Plaintiff has presented no evidence to create a material issue of fact that he suffered an adverse employment action as a result of discrimination. An adverse employment decision includes an employer's failure to accommodate, reasonably, the employee's disability. ... An employer also has a duty to engage, in good faith, in the 'interactive process', with the employee. ... the evidence presented demonstrates that based upon the letter from plaintiff's treating physician, ... Verizon made several accommodations to plaintiff's schedule and manner of work. Plaintiff has presented no evidence to show that defendant failed to engage in 'the interactive process'. In fact, the evidence of the accommodations afforded to plaintiff supports the contrary. ... ... ..."As to the second prong of the McDonnell Douglas standard, the burden then shifts to Verizon to produce evidence that the plaintiff was terminated for a legitimate nondiscriminatory reason. ... Given the fact that plaintiff claimed FMLA benefits on the day the investigation ensued and the investigation allegedly revealed that plaintiff was actually working on his new home, the Court finds that Verizon easily met its burden to demonstrate a legitimate nondiscriminatory reason for plaintiff's termination - - that is, for violating Verizon's Code of Business Conduct by 'misrepresent[ing] [his] health status'. ... ... ..."Plaintiff has failed to demonstrate a causal connection between his participation in the protected activity (using his FMLA leave) and his termination. In fact, as stated above, there is no dispute that defendant had been accommodating plaintiff's alleged disabilities for approximately two years prior to his termination. Verizon's stated reason for plaintiff's termination was misrepresentation of his health status and plaintiff has failed to point to any credible evidence that exercise of his FMLA rights had any casual connection whatsoever to his discharge. Therefore, plaintiff's claim for retaliation must fail. ..."... this Court does not find that Verizon in any way interfered with plaintiff's exercise of his benefits under the FMLA. To the contrary, the Court finds that Verizon was more than reasonable in its accommodation of plaintiff's conditions. Plaintiff's claim for FMLA interference necessarily fails."
"Defendant terminated plaintiff because of her inability to follow Creoks' policies, her conflicts with co-employees, and because she was causing Creoks to lose money. None of these proffered reasons are related to plaintiff's religion. Plaintiff submitted no evidence from which a reasonable person could infer that defendant's legitimate, non-discriminatory reasons for terminating plaintiff were mere pretext for unlawful discrimination. Plaintiff's primary evidence of religious discrimination is that her co-employee, Milton, said that she was 'shocked' that plaintiff was a Jehovah's Witness. This isolated comment about plaintiff's religion does not raise an inference of religious discrimination. On the contrary, Milton's statement occurred in a private phone conversation between plaintiff and Milton outside of work hours. ... Given this context, a reasonable trier of fact could not interpret Milton's comment to raise an inference of religious discrimination on the part of defendant."Further, the fact that plaintiff was reprimanded for teaching religion to clients does not create a genuine issue of material fact as to the alleged religious discrimination. Plaintiff agrees that it was inappropriate to teach religion to clients; she merely maintains that her teaching a client how to read and study the Bible did not constitute religious "witnessing". This disagreement about what constitutes impermissible religious teaching is not relevant to the religious discrimination inquiry. Plaintiff cannot point to any other evidence of religious discrimination. ... plaintiff's allegation of religious discrimination rests on her own conclusory statements, which are unsupported by facts in the summary judgment record. Mere conjecture and subjective beliefs about an employer's motive do not create a genuine issue of material fact. ... ... ..."... plaintiff's alleged disability is a generalized anxiety disorder. Plaintiff does not provide any evidence that this impairment substantially limits any major life activity On the contrary, she maintains that she was capable of performing her work adequately, but had problems dealing with pressure. While plaintiff cannot manage high levels of stress, she has not shown that she is 'significantly restricted' in performing a major life activity ... ... ..."With respect to the statement made by Milton, the Court also finds that there is no genuine issue of material fact concerning the alleged defamation. Even assuming arguendo that Milton's statements that plaintiff had a learning disability or was schizophrenic were false and defamatory in nature, there is no evidence that these statements were published. To the extent that Milton made such statements to other Creoks employees, such communication is not evidence of publication. 'Communication inside a corporation, between its officers, employees, and agents, is never publication for the purposes of actions for defamation'. ... ."
"Crawford testified that while she worked at New York Life, she had "[d]iarrhea ... throughout the day in early stage, besides that I had the rashes, I had headaches, I had palpitations, I had breathlessness, I had panic . . . . If I was at work, I was in the bathroom a lot." She testified regarding how IBS impacted her ability to work at New York Life as "detain[ing me] in the bathroom, it would limit where I was, but ... I could do what I needed to do. It would just take me longer to do things and I just wasn't as available." ... She also testified that while at New York Life, "it was stressful to be around people[.]" ..."Crawford testified that her symptoms have improved over time, including diarrhea once a month, constipation three times a month, [stomach cramps] one to two days per week, with daily flatulence. ... When asked how IBS affects her now on a daily basis, Crawford testified:'It's more mental and emotional . ... The constant awareness of it and being in the presence of others. So more of a social isolation, I guess. So that I have to carry certain things to feel at least that I am not as offensive to be around. Carrying personal sprays and things of that nature and I use them frequently . ... There are places or people that I tend not to want to be around because if it's somebody new, I tend to not want to be in that environment. And I have to limit pretty much my time socially.'
"... Crawford takes no medicine and follows no special diet or other regimen to control her IBS. ..."During her employment at New York Life, Crawford brought to the attention of LaDonna Carr ... , her supervisor, a number of grievances. In March 2001, Crawford complained that she was earning $500 less per annum than what the employment packet indicated she would earn. ... She also complained to Carr regarding the treatment of her by employees and supervisors at New York Life. She first complained about 'gossip' that co-employees spread about her using electronic mail. ... She said that two other secretaries, 'Janet', and 'Anesta', talked about her using the pronoun 'he' to disguise their intentions. ... When she asked technical support for an electronic mail account to communicate with the attorneys she supported, the technical support employee was very smug, and responded '[y]ou will get it when I give it to you.' ... On another occasion, a male employee walked past her, looked at her, and made a comment to another male employee about 'bra size', and laughed. ... Plaintiff also overheard the same employee state about female Jehovah's Witness members who live in his neighborhood that they 'let themselves go', to a group with other people in the lunchroom. ... In another instance, she suggested celebrating New York Life's hiring her with co-workers with 'bubbly', and she overheard a coworker state that 'this place is going to the dogs.' ... She also complained that her coworker 'Anesta' commented that she (Anesta) 'looked good in her clothes and referring to her weight and size', from which Plaintiff inferred that Anesta was insinuating 'that my clothes were tight and I needed to lose weight'. ..."Crawford also informed Carr about her IBS, and complained about comments and gestures made by co-workers regarding Plaintiff's IBS symptoms. During her tenure at New York Life, co-workers publicly commented on smells emanating from Plaintiff's area due to IBS-caused flatus. One co-worker would hold her nose and say 'it stinks' as she walked past Plaintiff's area ... ; others would make similar comments, and a maintenance employee told her that her work area was moved close to the restroom 'because you stink'. She also stated that employees would use other bathrooms because of the smells she produced because of IBS. (Id. at 199.) Plaintiff acknowledged that the area smelled of flatus because 'I had gas 24/7'. ... ."
"... [Crawford's] IBS-related symptoms do not 'substantially limit' any major life activity. ADA regulations define major life activities as including such functions 'as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working'. ... This is a non-exhaustive list, and Plaintiff's claimed impairments, i.e. that IBS has limited her ability to interact with others, to eliminate waste, and to work ... have been previously held by the Second Circuit to constitute major life activities. ..."However, Plaintiff has failed to present sufficient competent evidence that IBS has substantially limited these activities. ADA regulations counsel that in deciding whether a condition substantially limits a major life activity, a court should consider '(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment'. The first factor, the nature and severity of the impairment, weighs against a finding of a substantial limitation. In her deposition testimony, Plaintiff stated that IBS detained her in the bathroom frequently and caused her work area to smell of flatus. Plaintiff did not testify that IBS caused problems controlling the elimination of waste, beyond needing frequent trips to the bathroom. Because Plaintiff's work area adjoined the restroom, it is uncontested that she had access to a bathroom, and Plaintiff does not allege that her IBS ever caused extreme symptoms, such as requiring her to run to the bathroom without notice, or soiling herself. ... Therefore, Plaintiff's IBS symptoms did not limit her ability to control waste."Further, Plaintiff's symptoms did not substantially limit her ability to work, as Plaintiff conceded that IBS did not prevent her from completing any work assignment or otherwise limit her life activities beyond requiring frequent trips to the bathroom. To the extent that Plaintiff claims that IBS symptoms required frequent absences to attend doctor's appointments that resulted in her termination ..., I reject Plaintiff's Affidavit as selfserving and contradicted by her previous deposition testimony. The credible evidence shows that the specific instances that led to Plaintiff's termination, i.e., her absences on September 14, 17, and 18, 2001, were not caused by her need to attend medical appointments, but rather were precipitated by Plaintiff's unhappiness at how her co-workers treated her. ... Plaintiff does not submit any evidence, such as copies of doctor's notices, electronic mail, or other documentary evidence that might rebut her own deposition testimony. Moreover, assuming arguendo that Plaintiff has shown that her IBS symptoms resulted in her termination at New York Life, Plaintiff has not shown that these impairments would substantially limit her ability to perform any other job. An inability to perform 'a single, particular job' is not a substantial limitation upon working. While Plaintiff's frequent trips to the bathroom limited her availability and her resentment at how co-employees treated her may have caused her anxiety, they did not substantially limit her ability to work within the meaning of the ADA."The limitations created by IBS on Plaintiff's ability to communicate with others, while credible and significant, do not constitute a substantial limitation. The Second Circuit instructs that '[t]his standard is satisfied when the impairment severely limits the plaintiff's ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people -- at the most basic level of these activities'. ... Plaintiff testified that in response to her flatus, her New York Life co-workers made remarks and gestures that embarrassed her. Plaintiff further testified that her embarrassment resulted in stress-related symptoms, including headaches, heart palpitations, breathlessness, and panic. An anxiety disorder can be considered by a court to be a disability if it substantially limits the disabled individual's ability to communicate with others. ... However, Plaintiff testified that she was able to communicate with her superiors and coworkers effectively enough to complete her work. Furthermore, she testified that she is an extremely active Jehovah's Witness, participating in religious activities with other adherents several times per week. (FOOTNOTE: 'I reject Plaintiff's subsequent self-serving statement in her Affidavit that she 'drastically' reduced her hours of religious participation because of IBS symptoms as contradicted by her credible deposition testimony that IBS has not impacted her daily religious activities.') Accordingly, Plaintiff's testimony demonstrates that while her flatus has caused considerable embarrassment to her and has limited her social engagements, that it has not substantially limited her ability to communicate with others. ..."The second factor, duration of the impairment, also militates against the finding of a substantial limitation to a major life activity. Plaintiff first exhibited IBS symptoms in 2001, and Plaintiff concedes that her IBS-related symptoms have diminished over time, and now cause only occasional cramping, diarrhea, and constipation. While Plaintiff's condition appears to have no cure, it also appears to be controlled."The third factor, the permanent or long-term impact of the resulting impairment, also weighs against a substantial limitation. Plaintiff's testimony shows that while medication has not been effective, her exercise and diet regimen appear to have substantially reduced her IBS-related symptoms. Furthermore, Plaintiff's testimony that she is not now physically limited from performing any activity supports the conclusion that IBS does not substantially limit any of Plaintiff's major life activities. Thus, I conclude that Crawford fails to raise a triable issue of fact as to whether her IBS symptoms substantially limit a major life activity. ... ... ..."Plaintiff claims that New York Life dismissed her because of her complaints about statements and gestures by co-workers indicating that her IBS-related symptoms created noxious odors in her workspace and in the women's restroom. This claim must be dismissed because Plaintiff has failed to establish a causal connection between her complaints and her termination. It is uncontested that Plaintiff was late twice in July and September 2001 without previously notifying her employer that she would be late, contrary to the employer's policy, and that her last absences in September 2001, after she received a final warning notice for latenesses, put her over the policy limit. Plaintiff's dismissal pursuant to a clear absence policy after a final warning that future latenesses would result in her dismissal, and the absence of any evidence suggesting that her dismissal was related to her previous complaints, shows a lack of any genuine issue of fact as to whether there was a causal relationship between her complaints and her termination. ... ... ..."Plaintiff's claims that she was subjected to a hostile workplace environment because of her gender. [FOOTNOTE: 'I note that although Plaintiff claims to have been discriminated against because of her religion, Plaintiff alleges no specific instance of religious discrimination, beyond her argument that her termination was in part based on her activities as a Jehovah's Witness. However, inasmuch as Plaintiff acknowledges that New York Life accommodated her ministry practices and offers no evidence that religion played any role whatsoever in her hostile workplace environment allegations and her dismissal, I dismiss this claim without further discussion.'] ... ... ..."... To the extent that Plaintiff claims that her termination was the result of gender or religious discrimination, Plaintiff expressly denied in her deposition that she was dismissed because of her gender or religion. ... ... I reject Plaintiff's subsequent Affidavit that her termination was also motivated by religious and sexual harassment as self-serving and contradicted by her sworn and credible testimony in her deposition. ...
"In the present case, although the plaintiff disputes the basis for the lowered evaluation scores, he fails to show that the scores had any effect whatsoever beyond bruising his ego. With respect to the alleged suspension of his surgical privileges, the plaintiff was on medical leave at the time of the allegedly retaliatory action, he lost no pay or prestige, and he voluntarily removed himself from surgical service upon his return due to health concerns. ... ... ..."... Here, the plaintiff received his first lowered performance evaluation score before he filed a charge of discrimination. The plaintiff's first lowered evaluation covered the period from November 12, 1997, to November 12, 1998, and the plaintiff received this report in January 1999, well before he filed his June 1999 EEO complaint, and indeed, well before the incident giving rise to the complaint of discrimination (the June 1999 meeting) had even occurred."... The plaintiff's scores were on the decline six months prior to his complaint of discrimination. The fact that they continued to worsen following his charge of discrimination is not as clearly attributable to employer retaliation ... ... the facts in this case show a preexisting slide in scores that began well before the charge of discrimination was made. Thus, in this case, lowered performance evaluation scores simply do not rise to the level of an adverse employment action."The plaintiff also claims that he was retaliated against because of an addendum to the 1998-1999 performance evaluation expressing concerns about his fitness for surgery. Specifically, the plaintiff alleges that Dr. Cumberbatch used concerns about the plaintiff's personal health as a pretext to justify revocation of his surgical privileges. Even taking all of the facts in the light most favorable to the plaintiff, there is simply no support for this claim in the record."The plaintiff admitted that he was on an extended period of sick leave during the time relevant to this portion of his claim, from about November 2, 1999, through August 13, 2000, due to health problems, including multiple surgeries on his foot and the amputation of his left great toe. ... The plaintiff stated in his December 2000 EEO interview that he performed his last surgery in 1999, prior to going on his extended sick leave. He further confirmed that he had voluntarily performed no surgeries in the year 2000 since returning from sick leave. ... The plaintiff stated that the reason he had not performed any surgeries was because he was recovering from his own surgeries and because he had promised Dr. Jones, the Chief of Staff, that he 'would not go into the [operating room] until the foot [was] completely closed and healed'."The alleged revocation of the plaintiff's surgical privileges occurred in May 2000 when Dr. Cumberbatch amended the plaintiff's 1998-1999 proficiency report to include his concerns about the plaintiff's health problems and their impact on the plaintiff's ability to 'perform in an operating room setting.' ... It is not entirely clear whether Dr. Cumberbatch ever effectively suspended, revoked, or otherwise put into effect any restriction on the plaintiff's surgical privileges whatsoever. During his interview with the EEO examiner in December 2000, the plaintiff discussed a letter dated November 4, 1999, in which he alleges that Dr. Cumberbatch stated that the plaintiff was prohibited from doing certain types of surgeries unless he had Dr. Burns' supervision. ... The plaintiff also stated that Dr. Jones, Dr. Cumberbatch's superior, replied to Dr. Cumberbatch's letter and told him that the plaintiff did have surgical privileges and that Dr. Cumberbatch could not impose such restrictions on the plaintiff alone without including the rest of the podiatrists on staff. ... Neither Dr. Cumberbatch's letter nor Dr. Jones' response is included anywhere in the record, though these documents may have originally been included as attachments to the plaintiff's EEO testimony."Even assuming, arguendo, that the plaintiff's surgical privileges were restricted, any such action cannot be considered an adverse action under the circumstances presented in this case. Even if Dr. Cumberbatch successfully interfered with the plaintiff's surgical privileges on November 4, 1999, or on May 19, 2000, the plaintiff was at that time on medical leave, and would not return until August 2000. Upon his return, the plaintiff admits that he actually did have surgical privileges, but that he was voluntarily keeping himself out of the surgical suite in light of his own recent surgeries and ongoing recovery and healing process. ..."... The plaintiff was out on a very extended sick leave when the alleged suspension occurred. His privileges were, by his own admission, restored (or remained intact) at the time he returned to work in August 2000. The reason the plaintiff did not return to surgical duties was because of his self-imposed attempt to complete his own healing process, as a result of his recent multiple surgeries and difficult recoveries. The plaintiff suffered no actual loss of pay, prestige, or privilege, nor indeed, any other ill effects whatsoever because of any alleged restriction or revocation of his surgical privileges, because he simply was not present for such detrimental effects to accrue. When he did return to work, the plaintiff prevented himself from performing surgeries, ... Under the totality of these circumstances, the alleged revocation of the plaintiff's surgical privileges simply does not rise to the level of an adverse employment action."
UPTON v. WATCH TOWER BIBLE & TRACT SOCIETY is an very interesting ongoing 2006 New York state court case involving a Jehovah's Witness named Brenda Upton and the Jehovah's Witnesses themselves. Upton worked as a chiropractor at the Jehovah's Witnesses main Brooklyn headquarters from 1998 until 2001. Chiropractor Upton alleges that she injured her back around 2000, and that she is entitled to worker's compensation benefits. The Watch Tower Society claims that Upton was not an employee, but merely a volunteer who is not legally entitled to any remedies typically available to employees. An administrative law Judge ruled in Upton's favor earlier this year, but the Watch Tower Society vowed to fight his decision. Results of appeal are unknown.
In August 1994, a Houston, Texas Jehovah's Witness, named Troy Morehead, 25, died during a WatchTower "quick-build" project for the Assembly Hall of Jehovah's Witnesses, in Rosenberg, Texas. Morehead fell from the roof area down onto the concrete slab -- a fall that should not have necessarily been fatal. One can only wonder whether Morehead actually died due to refusal to accept a blood transfusion made necessary by internal bleeding.
SIMON v. SCHENECTADY NORTH CONGREGATION OF JEHOVAH'S WITNESSES was a 1987 New York lawsuit filed by a Jehovah's Witness named Charles Simon against his own Congregation. Simon was injured while "voluntarily" doing some carpentry work on the Kingdom Hall, which had been requested by the "Elders" of Simon's congregation. Simon's congregation refused to cover his injuries, thus resulting in this lawsuit, which Simon lost. Word to the wise, Contractors. Don't set foot on Kingdom Hall property unless you have all the insurance you will ever need. Their General Liability insurance is handled out of Watchtower world headquarters, and you will never get a penny without first spending a dollar.
MORE MISCELLANEOUS JW MEDICAL CASES CONTINUE ON NEXT PAGE
The Theocratic War Doctrine: Why Jehovah's Witnesses Lie In Court
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