Asthmatic waitress wins suit against nursing home Judge awards $10,000 back pay

October 05, 1993|By Darren M. Allen | Darren M. Allen,Staff Writer

A Sykesville nursing home discriminated against a 16-year-old part-time waitress when it fired her because she has asthma, a judge has found.

In a ruling filed last week, Administrative Law Judge Judith A. Showalter said Fairhaven Nursing Home broke a state law that prohibits discrimination against people with disabilities when it fired Kimberly Michelle Loman several days after she was taken to an emergency room during an on-the-job asthma attack in November 1990.

Judge Showalter ordered the nursing home to reinstate Ms. Loman because "Fairhaven engaged in unlawful employment discrimination."

The judge also awarded up to 36 months' back pay and lost wages -- about $10,000 -- to Ms. Loman, who is now 19 and a full-time student at Carroll Community College.

Ms. Loman is believed to be the first person in Maryland to be fired because of asthma and allergies, said Lee D. Hoshall, a lawyer with the Maryland Commission on Human Relations who PTC represented Ms. Loman.

"This job was a very important part of her life, and Fairhaven just cut her off," Mr. Hoshall said. "They basically told her to go back to her bubble."

The nursing home denies that it discriminated against Ms. Loman.

"Fairhaven has never been found to discriminate," said Gil A. Abramson, a Baltimore attorney who represents the nursing home. "They are the last people in the world who would discriminate."

Mr. Abramson said yesterday he didn't know if Fairhaven would appeal the decision, but that the case "was appealable for several reasons" which he declined to specify.

Ms. Loman could not be reached for comment yesterday.

According to Judge Showalter's order and opinion, Ms. Loman began working at least 12 hours a week as a waitress in the nursing home's food service department in September 1990. A pre-employment health screening done by Fairhaven found Ms. Loman "physically qualified" for the job, despite her asthma and allergies.

Ms. Loman was one of about 90 food service employees, and her duties included placing food on trays, placing trays on tables, cleaning up the dining room and taking dirty dishes to the dishwasher.

Records say that her allergies prevented her from working in mines, machine shops and around chemicals without ventilation. Her doctor said in the records that she could safely take the waitress job.

While asthma attacks have sent Ms. Loman to the emergency room 700 times in the last 10 years, she did not have an attack at Fairhaven during work hours prior to Nov. 30, 1990, records say.

When Ms. Loman came to work that day, a worker was using a chain saw to carve figures from ice.

"She began to work on the tray line and almost immediately began to cough 'a little bit,' " Judge Showalter's order said. "The cough accelerated and became steadily worse."

Ms. Loman's cough then prevented her from speaking, so she "used sign language in an unsuccessful attempt to communicate" with co-workers, the order says.

Eventually, she was taken to Carroll County General Hospital, where she spent three hours before she was discharged.

On Dec. 4, 1990 -- after Ms. Loman completed two work shifts over the weekend -- she was told she was being placed on medical leave. She was told to have her doctor give her a note saying that she could safely return to work. According to nursing home policy, employees who have a medical emergency during working hours are required to get such a note before returning.

After the nursing home doctor called her family doctor, Ms. Loman was fired.

The hospital's representatives said during hearings before Judge Showalter that Ms. Loman was fired because she failed to bring a permission slip from her doctor and hospital officials believed that her asthma would interfere with her work.

"The administrative law judge finds it incredible that non-compliance with the slip policy is important enough to terminate" Ms. Loman's job, Judge Showalter wrote. "In sum . . . [Ms.] Loman was terminated solely on the basis of her handicap and not because she failed to present a doctor slip."

Since she was fired, Ms. Loman has worked as a clerk at a fast-food restaurant, a department store and a video store. She also has worked as a baby sitter.

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