Owls Head Woman Sues Bank of America
Author: By Holly S. AndersonDate: Feb 12, 2008
In her request for a jury trial, Holly Swift claims BOA violated the Maine Human Rights Act and committed defamation and negligence. Swift is seeking past and future lost wages and benefits, as well as unspecified compensatory and punitive damages. She is also seeking declaratory and injunctive relief and attorney's fees and expenses.
Swift filed the lawsuit in U.S. District Court Jan. 31. She is represented by attorneys David Webbert and Matthew Keegan of the Augusta law firm Johnson & Webbert LLP
According to court documents, BOA fired Swift on July 26, 2006, for the stated reason of "job abandonment." Swift contends that at the time, she was still recovering from breast cancer surgery and out of work on the instruction of her doctors.
"The Bank denied Ms. Swift the reasonable accommodation of allowing her to remain on unpaid leave for fewer than four additional weeks when she was going to be released to return to work by her doctors," said the court document. "The Bank also discriminated against Ms. Swift by denying her the paid leave she had earned under the Bank’s Short-Term Disability Policy."
Swift began working for the bank on March 8, 1999, according to court documents. During her employment, Swift said, she received promotions and accolades for performance, including being twice named her department's iron person in February and December 2001, and most valuable player in February 2001 and November 2001, and Camden Activation's top performer in November and December 2001.
Less than two weeks before she was diagnosed with breast cancer in March 2006, Swift said, her annual performance review from the bank gave her an overall rating of "exceeds expectations," according to court documents.
According to court documents, less than two weeks after her diagnosis of malignant breast cancer on March 15, her physician on March 23 deemed her temporarily disabled and directed Swift to take a leave of absence from work until further notice.
On April 14, 2006, Swift underwent surgery to treat her breast cancer, according to court documents.
Swift said her physician complied with all of the bank's requests for information about her ongoing limitations and reasons for being out of work, contending as well that she was within the 26 weeks of short-term disability leave allowed under her employer's policy.
"On July 7, 2006, Ms. Swift’s reconstructive surgeon completed and faxed to the Bank another notice concerning her continuing need for medical leave from work," said the court document. "This notice was completed on the Bank’s own Health Services Certificate of Disability form. This notice confirmed for the Bank that Ms. Swift was scheduled to undergo a second surgery on August 3, 2006 and that her estimated date for returning to work was August 21, 2006. Ms. Swift would not have exhausted the 26 weeks of Short-Term Disability Leave allowed under the Bank’s policy if she returned to work on or about August 21, 2006."
During two alleged conversations in July with her employer's occupational health nurse, a personnel representative and/or her manager, Swift alleges she was threatened with termination of her job and received an alleged threat to "permanently mar her employment record by labeling her termination 'job abandonment' if Ms. Swift did not abandon her request for a reasonable accommodation and resign her position."
Swift contends she was caught in the middle, because she said she offered to come back to work against medical advice, but was allegedly told by her employer she would not be allowed back until cleared to come back to work by her doctor.
Swift states she ultimately refused to give up her rights to reasonable accommodation for her disabilities and told her employer's representatives she would also not resign her position.
Later that month, Swift said she received a letter dated July 26, 2006, from her employer advising her that because she was "not approved for time away from work" and had "not returned to work," her employment was considered terminated effective July 26.
Swift said the bank gave "job abandonment" as the official reason for termination of her job, according to court documents.
Among other allegations, Swift alleges BOA violated its own short-term disability policy when it labeled her termination as job abandonment.
Swift contends that because she did not have approval from her doctor to return to work, her situation could not be considered one of job abandonment, according to court documents.
"Ms. Swift did not receive a return-to-work certification, or any medical release to return to work, from any health-care provider, after her breast cancer surgery and before the Bank terminated her for 'Job Abandonment.' Under the Bank's own 'Job Abandonment' policy, [j]ob abandonment occurs when an individual refuses to return to work and/or does not contact their manager for two or more business days," said the court document. "Ms. Swift did not refuse to return to work at the Bank. Ms. Swift offered to return to work at the Bank without her doctor's permission, which she could not obtain because her doctor reasonably believed she was temporarily disabled from work. The Bank refused to allow Ms. Swift to return to work."
Subsequently, following a second surgery on Aug. 3, 2006, Swift said in the court document that she went to fill a prescription for a pain reliever and was allegedly denied because her health insurance had been canceled by her employer.
Swift also alleges that BOA told prospective employers that she committed job abandonment when asked about her job history and that Swift herself had to give job abandonment as the reason given by BOA for terminating her employment.
"The Defendant acted with actual malice and reckless disregard for Holly Swift's rights protected under the Maine Human Rights Act," said the court document.
In violating her rights, Swift alleges, BOA unlawfully terminated her from employment, violated its own policies in stating the reason for her termination as job abandonment and did not make reasonable accommodations for her disability, according to court documents.
Swift also alleges in the court document that BOA did not allow her to use the short-term disability leave she was entitled to as a benefit of employment, did not allow her to return to work and did not discuss extending her unpaid leave of absence.
Additionally, Swift accuses BOA of violating her rights when it allegedly "retaliated against her for requesting reasonable accommodations by harassing her, threatening to terminate her employment and give 'Job Abandonment' as the reason for dismissal if she did not give up her rights to reasonable accommodation," according to court documents.
In addition to seeking damages, lost pay and benefits and attorney's fees and costs, Swift is also seeking injunctive relief ordering BOA to provide civil rights training for all its managerial employees in Maine and to take "other affirmative steps to reduce the likelihood of similar disability discrimination in Maine" in the future.
"And order the defendant to desist from all similar disability discrimination and unlawful denial of reasonable accommodation for Maine employees with disabilities," said the court document.
VillageSoup/Knox County Times Senior Reporter Holly S. Anderson can be reached at 207-236-2496 or by e-mail at holly@villagesoup.com.
