FRIENDSHIP, Maine — A Friendship woman who worked 31 years at a local nursery school claims she was fired after the Maine Department of Human Services refused to relicense the facility with her as an employee because of her hearing loss.
In response, Rosemary S. Kelley is suing the Maine Department of Health and Human Services’ division of licensing and regulatory services, and DHHS Commissioner Mary Mayhew.
The federal lawsuit filed in U.S. District Court in Portland on Dec. 21 argues that the state’s actions violated the Maine Human Rights Act, the Americans with Disabilities Act, and the federal Rehabilitation Act.
“It [has] been the worst nightmare of her life to be told she was unsafe for the children she loved and to be fired,” the lawsuit states.
Kelley is seeking compensation for the loss of her job, civil damages for the state’s actions, and attorney and legal fees.
The lawsuit notes that Kelley has had a hearing loss since childhood and has worn hearing aids.
Kelley had worked for 31 years at the Sonshine Nursery School in Friendship as a teacher’s assistant until December 2010 when she was terminated.
She is represented by attorney M. Elizabeth Gallie of the Maine Center on Deafness from Portland.
“My client’s motivation for suing is twofold. She does not want what happened to her to happen to anyone else. She would like the State of Maine’s Division of Licensing and Regulatory Services to develop rules and policies so that individuals with disabilities are properly assessed and not assessed based on myths and stereotypes,” Gallie said Monday. “Also, working with children was her life. She would like to be able to work with children again and be counted in the staff to child ratio so that she would have a good chance of being re-employed in Maine.”
The lawsuit states that in September 2010, an employee of the state’s division of licensing and regulatory services conducted an inspection of the nursery school for renewal of its license. The lawsuit states that the inspector, Brian McAuliffe, became concerned about Kelley’s ability to effectively supervise children because of her hearing loss.
Kelley claims in the lawsuit that McAuliffe did not voice his concerns to her, did not have expertise in hearing loss, nor did he ask for information from her audiologist. The Friendship woman said she noticed McAuliffe observing her and asked him if there was a problem and he said no.
There are no state regulations that require child care staff to be able to hear, the lawsuit states.
State licensing regulations require that there be one adult present for every 12 children in a nursery school. The classroom where Kelley worked had two adults, including her, for 13 children.
The state renewed the Sonshine school’s license but with the condition that it needed to correct the staff-child ratio since it could not count Kelley as a staff member. McAuliffe sent an email to his supervisor in October, stating that unless another staff member is available, licensing action will be taken because the school was failing to meet the required ratio, the lawsuit states.
The nursery school board chairman informed Kelley that she was being fired because the state had notified the school that it could not count Kelley as a staff member in order to meet the required staff-child ratio because of her hearing loss.
Kelley asked the school to give her a chance to get new hearing aids but she was refused because the school was concerned about its license, according to the lawsuit.
Kelley contacted the state agency multiple times in December but was given no options nor advice on how she could continue to work for the school. Gallie said the lawsuit is against the state and not her former employer because it was the state’s action that led to her losing her job.
Kelly Turner, an assistant attorney general who represents the state in the lawsuit, said the state has no comment on pending litigation. She pointed out, however, that the Maine Human Rights Commission ruled earlier this year that there were no reasonable grounds to find that there had been unlawful discrimination.
“Obviously we agree with that decision,” Turner said.
Kelley has experienced and continues to experience significant financial loss, mental anguish and emotional stress as a direct result of the state’s action, the lawsuit stated.
Gallie said she has not seen a case like this. The Center on Deafness serves and advocates for people who have hearing problems or are deaf.
I think the State Inspector messed up here. I feel she should be reinstated, get back pay for the time she was out and reasonable lawyer costs. I would not even consider civil damages from an action of a possibly ill informed employee.. She says she just wants to work with kids again, the civil damages must be the lawyer talking.
Why should she not pursue civil damages. A person who did not know her, nor have the expertise to understand her particular situation made a judgment call based on incomplete information at best and negative bias at worst.
And she should also sue the people who fired her. It seems they did not make any reasonable accommodations as required by the ADA to help her maintain her job. She deserves all the things she is asking for and then some.
It would be impossible for the state inspectors to “know’ every employee of the business they have to monitor. The inspectors need to make snap judgement calls with the little time they have to spend with every business. Mistakes will happen. to give her missed pay and her job back is fair. To ask for any more money then that and reasonable legal costs is just greedy, and may indicate it is about money and not about her job. Frankly, I feel these lawsuits asking for much more money then is fairly due is one of the big factors in what is destroying our economy. Of course all of the lawyers would disagree.
This woman has every right to sue- she was forced out of a job she obviously loved, at the hands of a low-level bureaucrat who apparently never read the ADA or bothered to acquaint himself with her lengthy work history without incidents.
“State licensing regulations require that there be one adult present for every 12 children in a nursery school. The classroom where Kelley worked had two adults, including her, for 13 children.
The state renewed the Sonshine school’s license but with the condition that it needed to correct the staff-child ratio since it could not count Kelley as a staff member.”
I think the reporter or the state needs to double check the math. If requirements are 1 adult for 12 children, and the facility had 2 (not counting Kelley), for 13 children, someone does not understand ratios. My guess is the “13” should be a different number, possibly 33?
Was there more on this story somewhere?
In this article there was no mention of the number of children, or the number of employees.
If your asertations are true, thank you for the informations and shame on the “journalist”.
The most students allowed, as I went to this school, is 12 to 13. There are two other aides there with her at all times. She is not deaf; just hearing imparied as many people get when they get older. Does this mean every older person should not be allowed to work? I guess that is what Brian McAuliffe wants.
There were 2 adults INCLUDING her, that means she was one of the two adults caring for 13 children. Without her, there would be one person caring for 13 children. The BDN had it right.
No, get your facts straight before posting things that aren’t true. THERE ARE 2 OTHER WORKERS AND HER THAT EQUALS 3 NOT TWO LEARN TO ADD. This lady was my nursery school teacher and is a wonderful woman who devoted her life to her students and her mother. I hope she gets the maximum that the State can be sued for.
I hope that this lady wins very big! There was NO reason to fire this lady at all. What does the State of maine plan on taking away kids from parents that can’t hear next?
The State will lose this one.
Sounds like a Brian McAuliffe needs to be the one out of a job!!!
I wouldn’t call it a job, just employed is more accurate
Sad to say get use to it, employers are firing people all over the country for minor health issues to more serious ones, but who can still work. The best part is Obama wants to fine these people, who can’t get jobs, for not having insurance, because insurance discriminates and so do employers. New World Order, isn’t it just grand, set back and watch it come to your home soon.
What ails you . . ?
You tell me then whats going on. Why did the government open the door for all these companies to leave and yet no import fees? Why would a president say he wants to fine people who don’t have insurance, cause they don’t have jobs or jobs that offer insurance, cause they can’t afford to? Why not make medical cost a lot less? What kind of people charge a person $1250.00 a month for 28 pills? A hospital $10,000.00 an hour in a recovery room. Why does it cost $135.00+/- to go to your doctor to get your blood pressure checked to get a script renewed?
Why do they make it almost impossible to start a business? Why are they going easy on criminials and welfare but beating the crap financially out of a person making 24k a year, before taxes and have to live on 16k after taxes yet you have to include everything you don’t get to keep on your tax return?
You tell me about why we are in Afghany, they didn’t attack us. You tell me why a government has 3 feet deep files on a rock star and yet they let 9/11 happen? How did the find Hussein and Bin Laden when they can’t figure out how to balance the books?
I’m still waiting for you to tell me whats going on.
But there will be a lot of new jobs opening soon, if they have not already.
As of the first of the year my son’s hours have been cut in half, was it because of … saaatan … I mean Obamacare?
Well there’s a day care job open now and a psychic who says there will be, but I think your last sentence is more like it. My hours go cut too.
Time to fire DHHS, the entire department is a waste of money, time, lives, and jobs. All those people do is play cards for an 8 hour day and then they take a 15 minute work break once or twice a day. Eliminate this department and watch the budget deficit come back toward earth.
Kind of a broad statement. i have had the chance to work w/DHHS workers over the years in conjunction w/my work and while there are some not worth their salt, there are many who do their jobs well. But yes, the DHHS system as a whole needs to be revamped.
If she worked for 31 years in her job, then she must have been acceptable to her employers, and to the parents of the children she was taking care of. What was the problem??
It seems there was a conspiracy to get this woman out the door. The school did nothing to advocate for her. And the DHHS inspector lied to her when she asked if he had a problem while he observed her. If he was honest, she could have visited her audiologist which she thought might prove helpful after she was fired. Instead, she was out the door before she even knew anyone was holding it open for her to exit. That is a disgraceful way to treat workers. Anyone who ages is going to experience some physical changes. Are we to get the ax under the assumption that only people with ideal bodies merit employment?
“You’re fired”…… What? “You’re fired”…….. What? “YOU ARE FIRED”……. No, I’m not in choir, but thank you for asking.
First time I have laughed looking at the comments section. On a serious note, I think this woman will prevail against the state and recover a significant portion of what she is owed. This is completely out of line and why on earth would DHHS not consult with her audiologist to come up with an amicable solution. Does DHHS think they have the ultimate and final say in everything? Talk about a power trip.
Blind taxi drivers
Get your facts right she is hearing impaired, not deaf. I had her as my teacher at Sunshine Nursery School and she could hear me just fine. I graduated from her school 19 years ago and still every time I see her I remember what an great teacher and lady she was. There are 2 other teachers aides there at the same time, so what is your problem Mr./Mrs. pushtherebutton. You should get your facts straight or get a hobby instead of picking on someone who served her community and church for 31 years.
I had 2 children that went to Sonshine Nursery School about 25 years ago…She was a wonderful teacher and very much loved by my children. She is Wonderful with the kids! That should count for something. Her hearing impairment has never interfered with her care and teaching of the kids. Yes, maybe she could benefit from better hearing aids but she still converses with me just fine when I see her out and about in public….No communication problems at all! She deserves to be able to continue to work in the field that she loves. She deserves compensation for the lost wages and recognition for the job, well done, that she has done for 31 years! I am not going to say DHHS was not doing their job…He thought he was doing the right thing. I will say that he should have been more thorough in his investigation into the matter to find out that she was NOT a threat or harm to these children due to her hearing impairment. This is my opinion of the situation.
We need to get rid of myths and stereotypes for people who may or may not have a mental issue too.
There are plenty of people who live normal lives who hear things or think they hear things and are perfectly safe, just misunderstood.
Is that really a reason to take life, liberty, and property away, for an evaluation period, and not give them a chance to gather witnesses in their favor and get a chance in court to be proven beyond a shadow of a doubt there is an issue before taking those rights away???
Rosemary took care of my 3 kids at Sonshine and all were sad when she was gone. I am happy to see her fighting for her rights, and the rights of others who are hard of hearin