More MS news articles for July 1999

Suit alleges man fired after MS diagnosis

http://www.denverpost.com/business/biz0705b.htm

 
By Eric Hubler <mailto:ehubler@denverpost.com>
Denver Post Business Writer
July 5

Bill McCrocklin says the company that was both his employer and his health insurer fired him because he got sick. And the federal government agrees.

"It would be amazing if they were a car dealership," says McCrocklin, who has multiple sclerosis. "The fact they're an HMO - I couldn't believe it. I still can't believe it. They knew what I was going to go through. It would have been so easy to help, but they didn't."

The company, Denver-based Sloans Lake Managed Care, responds there was no discrimination; McCrocklin's position and two others were eliminated because their department was unsuccessful.

The Equal Employment Opportunity Commission took the former account executive's side by filing a lawsuit against Sloans Lake in U.S. District Court in Denver on June 21, alleging that the insurer violated the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991 when it dismissed McCrocklin in January 1996 - six months after he was hired and two months after he was diagnosed with MS, an incurable, disabling neurological illness.

Says Greg Clexton, one of McCrocklin's attorneys from the firm of King Clexton & Feola: "It has not been frequent that the EEOC has, at least here in Colorado, one, found evidence of discrimination, and two, decided to sue."

In the Denver regional office, which covers Colorado, the Dakotas, Montana, Nebraska and Wyoming, as well as nationwide, the EEOC sues in only 0.5 percent of all the cases in which it believes a company has discriminated, according to figures compiled by the agency.

The importance the EEOC sees in this case may stem from a related action Sloans Lake took that the commission may have seen as a threat against its own mission: having McCrocklin sign a waiver and release saying that, as a condition of receiving six months of severance pay and a one-year extension on his health benefits, he would not file a complaint against Sloans Lake.

To the EEOC, that means Sloans Lake "unlawfully interfered with, intimidated and coerced McCrocklin in the exercise of his federally protected right to file said charge," its lawsuit states.

McCrocklin says he signed it under duress, making the document invalid. "I signed it at the time because I frankly had no idea of its impact. I was taking numerous drugs, including narcotics and antidepressants that individually would cloud anyone's judgment. I think it would be fair to say I wasn't really there." His lawyers add that he didn't get the required seven days to review the document.

McCrocklin filed a discrimination complaint with the EEOC on Oct. 31, 1996. After several settlement attempts fell through, Sloans Lake responded by suing him in state court on June 11 of this year, asking the court to affirm that the waiver and release was valid.

Sloans Lake attorney Mark Sabey of the Denver firm of Kutak Rock says the federal government actually prefers discrimination complaints to be settled so as not to swamp the courts, and the waiver and release is a legal way of making sure that happens, he says.

"He's already waived his right to damages," Sabey says. "Now he's trying to renege on his agreement. ... We have an employee who accepted a severance package in exchange for a waiver and release, and now, after he's received the full benefit of that severance package, he's trying to obtain more money through an EEOC action." The EEOC is seeking $500,000 in back pay and other costs for McCrocklin.

Sloans Lake, which is wholly owned by the Christian hospital company Centura Health, covers 50,000 Coloradans in its HMO, more than 400,000 through a preferred provider network, and 1.6 million through automobile personal-injury policies. History of the dispute

The case started when Sloans Lake told McCrocklin that his three-person department, which was developing a worker's compensation policy, was being disbanded because it didn't make any sales.

"He was hired to market a worker's comp product, and he and the people who worked with him were never able to get a single customer for that product," Sabey says. "And so the decision was made to eliminate the product."

But McCrocklin later discovered Sloans Lake was still - or again - developing a worker's comp product. Explaining to a job interviewer why he left Sloans after only six months, he said it was because his project got canceled. The interviewer pulled out an ad from Sloans Lake - for a new worker's comp product.

McCrocklin, shocked but hoping this was an opportunity to get back the job for which he'd been recruited from California, asked to come back, if only as a consultant. But he got no response.

Sabey concedes the company "tested the waters" about a year after McCrocklin's dismissal by mailing ads to potential clients asking if they'd be interested in a Sloans Lake worker's comp policy. "There was still no interest in that product," Sabey says. "So Sloans Lake has never had any customers for its worker's comp product, it's never had any staffing since the time that he left, and nobody was ever hired to take Mr. McCrocklin's position."

To make a discrimination claim stick, the complainant has to prove that the employer knew of his disability, and that's true here, McCrocklin says. He says he told his boss and Sloans Lake's medical director immediately after his diagnosis, consulted frequently with the medical director because he was scared and didn't know what to expect as the disease progressed, wore an intravenous medical pump to work, and, on his psychiatrist's advice, talked openly about his condition at the office.

"I believe every member of (Sloans Lake's senior management) group knew about the diagnosis," McCrocklin says.

Sabey counters that "there were a few people who knew it, but it's my understanding that a majority of the decision makers had no idea and it wasn't mentioned or discussed in the decision process."

Clexton's firm "intervened" in the case - a way of representing McCrocklin in the government's lawsuit so he doesn't have to file his own - and will try to get the EEOC's federal lawsuit combined with Sloans Lake's state lawsuit into a single trial. Sabey said he will file either for summary judgment or for dismissal, but failing that, it's almost certain the case will go to trial.

And it could get even more complex: In their filing, McCrocklin's lawyers identified a second member of his department, Pat Dougherty, who had breast cancer when the department was broken up. Clexton said he wasn't sure why she wasn't included in the EEOC's complaint and Joseph Mitchell, the EEOC's regional attorney, said he couldn't comment on that or any other element of the case. But Clexton said he will use her story to show a pattern of discriminatory firings.
 
Dougherty declined an interview request, but in an affidavit she provided to McCrocklin's lawyers she says she was told about her firing the day after her lumpectomy.

McCrocklin says the dismissals were a business decision all right, but the most cynical kind.

"I was a fairly expensive employee," he says. "As a medical entity, they know enough about MS to know that for some period of time, my productivity would decline."

Today, McCrocklin walks stiffly with a cane custom-made for his lanky 6- foot-5 frame; takes so much pain medication that he can't feel when his teeth, cavity-prone since childhood, need work; and admits to some memory loss. But, he insists, he could work if given the chance. As the case proceeds, McCrocklin may find himself with a big cheering section: For unknown reasons, Colorado has an unusually high incidence of MS - one out of every 800 people, as opposed to one out of 1,000 nationwide - according to Dianne Williams, president of the Colorado chapter of the National Multiple Sclerosis Society. She said she doesn't know enough about the case to take a stand on its merits, but said, "The society certainly supports, 100 percent, the spirit of the ADA."