Employee Rights Case Against Firm Heads to Hearing

By Eddie Gregg at The Billings Gazette March 18, 2014

An investigation by the Montana Human Rights Bureau has determined that a Helena employee of CTA Architects has “reasonable cause” to believe the company discriminated against her because of health conditions.

The investigator in the case found the “preponderance of the evidence” supports Michelle Campbell’s claim that CTA “cut her hours and eliminated her medical insurance benefit in March 2013 because she disclosed she was pregnant and recently diagnosed with MS.”

Scott Wilson, president of CTA, said Monday he couldn’t discuss any employee issues, adding: “We do deny any discrimination or any wrongdoing” in the case.

Campbell started working as a full-time administrative assistant in CTA’s Helena office in 2009. The Billings-based company has 18 offices across the U.S. and in Canada.

According to the Human Rights Bureau report, Campbell’s employer reduced her position from 40 hours a week to 16 hours a week shortly after she informed her superiors of her pregnancy and diagnosis.

The report states that CTA officials told an investigator that Campbell’s job was reduced to part time as part of a companywide office restructuring triggered by budgeting problems and a projected shortage of work.

The eight-page report was signed on Jan. 14, which gave the parties involved 30 days to reach a settlement. No settlement was reached, so the case will go before a hearing examiner appointed by the Hearings Bureau of the state Department of Labor and Industry.

Wilson said the hearing hasn’t been scheduled, but he is confident CTA will prevail.
Campbell’s attorney, Todd Shea, of Bozeman, said that his client hasn’t been terminated from her job, but that she no longer works in the Helena office.

Since her diagnosis, Campbell has racked up more than $25,000 in outstanding medical bills, according to Shea.

Shea said Tuesday the amount of damages sought in the case hasn’t been determined.
“She cannot get her recommended treatment and medication for her MS treatment as she has no insurance and very little money after her hours were reduced,” Shea wrote in an email to The Gazette. “This has resulted in the exacerbation of her MS symptoms.”

Bozeman Nurse Settles Wrongful Discharge Lawsuit – Shea Law Firm Bozeman, MT

Chronicle Staff | Posted: Friday, February 10, 2012

A Bozeman nurse who claims she was fired after acting as a surrogate mother for a patient has settled her wrongful discharge lawsuit with Billings Clinic.

Anicee Acosta-Yearick contended that Billings Clinic wrongly fired her for ethics violations when she agreed to carry the patient’s baby in 2009, according to court documents.

Acosta-Yearick worked for Bozeman OB/GYN, owned by Billings Clinic, for 16 years before she was fired in January 2010. She was fired because “as a licensed professional nurse, she used her knowledge of private, protected health information to influence and solicit a Billings Clinic patient to enter into a surrogacy contract resulting in personal gain,” which violates the nursing and clinic codes of conduct, court documents state.
Billings Clinic filed an ethics violation complaint against Acosta-Yearick with the Montana Nursing Board, but the board decided the complaint did not justify legal or disciplinary action, according to court records.

Acosta-Yearick claimed she is friendly with the couple who asked for her help, court documents state, and she did not ask for money other than expenses.

Medical providers, who worked with Acosta-Yearick, supported her decision to be a surrogate mother for the patient. They submitted written statements that called into question the clinic’s motives for firing Acosta-Yearick.

The clinic filed to dismiss the case, saying state law protects employers from being sued for wrongful discharge when they have good cause. The clinic’s attorney claimed the accusations of insurance fraud, ethics violations and Acosta-Yearick’s decision to make money from the surrogacy were all valid reasons for firing her.

A Gallatin County judge’s order closing the wrongful discharge lawsuit didn’t include the settlement amount.

In a separate complaint, the insurance commissioner ordered health insurer New West Health Services to pay Acosta-Yearick’s medical bills for maternity care. New West had originally withdrawn its coverage after learning of the surrogate pregnancy.

A federal lawsuit against New West also has been settled and closed.

Insurer must pay bills for surrogate mother’s pregnancy – Nurse’s lawsuit against Billings Clinic Persists

JODI HAUSEN, Chronicle Staff Writer, November 10, 2011

A health insurer that withdrew medical coverage for a Bozeman nurse’s pregnancy after learning it was a surrogacy was ordered by the state to pay her medical bills.

Jameson C. Walker, attorney for the Montana Commissioner of Securities and Insurance, notified New West Health Services that the insurer has to reimburse Anicee Acosta-Yearick for costs associated with her 2009 surrogate pregnancy.

“New West attempt to exclude coverage for surrogacy” but the exclusion outlined in the plan “only applies to costs associated with treatment of infertility – not an ensuing pregnancy by the insured surrogate,” Walker wrote in bold in the Nov. 1 letter.

“The policy also provides for coverage for all pregnancy and does not specifically exclude surrogacy pregnancy,” he continued.  “Even if the exclusion applied to the insured’s surrogacy pregnancy, this would be a violation” of Montana law that makes it unlawful to discriminate “solely on the basis of sex or marital status in the issuance or operation of any type of insurance policy.”

Citing a previous Montana Supreme Court case, Walker continued: “Since pregnancy was a condition unique to women, and the exclusion subjected women to fewer benefits than men, (the policy in question) unlawfully discriminated on the bases of gender.”
New West was given until Dec. 1 to provide the commissioner’s office with proof Acosta-Yearick’s covered pregnancy costs have been paid.

In a lawsuit filed against New West, Acosta-Yearick and her husband, Christopher Yearick, sued to recover more than $11,500 in medical claims.
Although it appears her medical bills will be paid, Acosta-Yearick is still awaiting resolution on a related wrongful discharge lawsuit she filed in Gallatin County District Court against Billings Clinic.

According to the lawsuit, Acosta-Yearick contends Billings Clinic wrongly fired her on grounds she violated the organization’s code of ethics when she agreed to carry an infertile patient’s baby.

Acosta-Yearick worked for Bozeman OB/GYN, owned by Billings Clinic, for 16 years before she was fired in January.  She was terminated because “as a licensed professional nurse, she used her knowledge of private, protected health information to influence and solicit a Billings Clinic patient to enter into a surrogacy contract resulting in personal gain,” which violates the clinic’s code of conduct and a nursing code of ethics, court documents state.

Billings Clinic filed an ethics violation complaint against Acosta-Yearick with the Montana Nursing Board, but the board determined the complaint did not justify legal or disciplinary action, court documents state.

Acosta-Yearick claims she is friendly with the couple who asked for her help.  She did not ask for financial compensation other than expenses.  She carried the woman’s baby as a gift.

Medical providers, who worked with Acosta-Yearick, supported her decision to be a surrogate mother for the patient.  They submitted written statement that called into question the clinic’s motives for firing her.

In her statement Dr. Stacey H. Shomento said that the complaint filed with the nursing board was “a personal vendetta” against Acosta-Yearick.  “I feel very strongly that Anicee has been wrongly accused,” she wrote.

Todd Shea, Acosta-Yearick’s attorney, also alleges in the suit that Billings Clinic violated the nurse’s privacy when they reviewed her medical records without her permission.
The clinic filed to dismiss the case, saying state law protects employers from being sued for wrongful discharge when they have good cause to do so.

The clinic’s attorney, Ed Butler, of Colorado Springs, Colo., calls the case “wholly frivolous” and claims the accusations of insurance fraud, nursing ethics violations and “specifically the propriety of Mrs. Yearick’s decision to become a surrogate mother for a patient…and her financial gain from that decision” are all valid reasons for having fired her.

Bozeman Nurse and Surrogate Mother Suing Billings Clinic, Health Insurer

JODI HAUSEN, Chronicle Staff Writer I Posted: Tuesday, October 11,2011

A Bozeman nurse is suing Billings Clinic and its health insurer, claiming she was wrongfully fired and denied health insurance coverage because she was pregnant as a surrogate mother for her patient.  Anicee Acosta-Yearick filed one lawsuit each against the Billings Clinic and the insurer, New West Health Services.

According to the lawsuits:
Acosta-Yearick was fired on grounds she violated Billings Clinic’s code of conduct and a nursing code of ethics when she agreed to carry an infertile patient’s baby. She is also suing to recover more than $11,500 in medical claims for the pregnancy New West initially paid but later revoked.

In November 2009, Acosta-Yearick became pregnant for a patient at Bozeman OB/GYN where she worked. The baby was born at Bozeman Deaconess Hospital in July 2010. When she was fired in January, Billings Clinic “informed Mrs. Yearick that she was under investigation for insurance fraud” and “interrogated” her about her pregnancy. The clinic filed a complaint against her with the Montana Nursing Board for ethics violations. The clinic fired her because she “used her knowledge of private, protected health information to influence and solicit a Billings Clinic Bozeman OBGYN patient to enter into a surrogacy contract resulting in personal gain.”

But Acosta-Yearick claims she is friendly with the couple who asked for her help. She did not ask for financial compensation other than expenses. She carried the woman’s baby as a gift. “If anyone pushed anyone into signing a legal surrogacy contract, it was I,” the baby’s mother wrote in a statement in the lawsuit. “Yes, Anicee, as my close friend, offered to be my gestational surrogate, but it was I who made the first contact to Anicee.”

Acosta-Yearick claims medical providers at Bozeman OBGYN supported her decision and never questioned her motives when she received pregnancy care.
Dr. Tyler Bradford wrote, “I feel it is wrong for her to be reported to the board of nursing and it would be even more unjust if her license is suspended or revoked as doing so would punish an individual for exhibiting the characteristics that we should all strive for in medicine: selflessness.”

Todd Shea, Acosta-Yearick’s attorney, said another nurse at a Billings Clinic donated her kidney to a patient. He wrote in the brief that she “was praised for her selfless and courageous act.”

Acosta-Yearick claims her termination violated her health care privacy rights, defamed her through slanderous and libelous contentions, was intended to interfere with her economic interests and intentionally inflicted emotional distress.

The lawsuit against New West claims the insurer initially paid Acosta-Yearick’s medical bills but later reneged after a Billings Clinic employee asked the insurer about the legitimacy of the payments. The insurer had no exclusions for “surrogate services” and only added that amendment to the plan after Acosta-Yearick had asked about her benefits and became pregnant with the understanding her medical bills would be covered.

Montana’s state auditor reviewed Acosta-Yearick’s appeal to New West after her benefits were revoked and ruled in her favor, saying “the underlying condition that New West is denying coverage for is pregnancy and child birth. This is a condition exclusive to women.”

Case Dismissed in Disability Discrimination Claim

Source: Montana Law Week

The Shea Law Office represented a property management company against a disability discrimination suit. Below is write up from Montana Law Week.

Geoffrey Angel practices disability and discrimination law. The Baxter Hotel in Bozeman has 7 floors. The 1st floor, mezzanine level, and 2nd floor (really the 3rd floor) are comprised of commercial units which house businesses that are open to the public. The top 4 floors each contain 5 residential units. Angel has owned a residential unit in the Baxter since before 2005 and is a member of the Baxter Homeowners’ Association.

In 11/05 he entered into a lease with Claude Matney for office space on the 2nd floor. During the time he maintained his office there he had no employees. The Baxter was built in 1929. There is a single elevator and stairway from the ground floor to the commercial and residential floors. The stairway is narrow and has turns. The only way persons in wheelchairs or utilizing a walker can access the upper floors is via the elevator. Between 2/08 and 1/09 the stairway from the lobby to the 2nd floor remained unlocked. In 1997 the Association amended the declarations to require that the lobby entrance be locked during Thanksgiving, Christmas, and non-business hours and the elevator locked at all times. It remained unlocked during business hours until 2/1/08. At the time Angel moved his office into the Baxter and for sometime before that the elevator was closed to general passenger use at the recommendation of City inspectors because it needed repairs. The Association instructed building manager Michelle Lindahl (High Street Properties), to inform unit owners that beginning 2/1/08 the elevator would be restricted at all times. She posted a notice around the building. Residents could access the elevator any time with their swipe key cards, and in 1/09 a time clock was installed that would keep it unlocked 8 a.m. to 5:30 p.m. and the by-laws were amended to require that it remain unlocked on the mezzanine and 2nd floors 8-5:30. In 3/08 Angel filed an HR complaint against the Association and High Street alleging discrimination by failing to provide reasonable accommodation for disabled persons by failing to keep the elevator open during business hours. He subsequently moved his office to his residence on Babcock which had been occupied by college students.

Angel, because he practices discrimination law, has standing under the MHRA to pursue this claim as an aggrieved party — anyone who can demonstrate a specific personal and legal interest as distinguished from a general interest and who has been or is likely to be specially and injuriously affected by a violation of the HRA. §49-2-101(2). Angel requested a reasonable accommodation for his clients; while the stairwell remained open, his suggested accommodation that it remain unlocked during business hours was reasonable. Had Baxter done nothing to resolve the issue, it is possible the HO might have found a violation of the reasonable accommodation statute. However, it did finally undertake a reasonable accommodation by installing the time clock and altering the by-laws to require that the elevator remain unlocked during business hours. The real question is whether the delay was so great that it amounted to a failure to accommodate. Terrell (11th Cir. 1998); Selenke (10th Cir. 2001).

The substantial evidence is that the Association acted in good faith. It was bound by law to work with Angel to reach an accommodation and was clearly willing to do so. However, he was essentially unwilling to engage in any dialogue about an appropriate accommodation. His response to the Association was in essence “my way or the highway.” He could have had input into board meetings as to the accommodation but failed to do so. The board spent at least 6 meetings going through the issue of the locked elevator and appropriate means of resolving the conflicting interests that the unit owners had presented (one owner’s complaint that the elevator needed to be restricted in accordance with the by-laws v. Angel’s and Matney’s concerns that it must remain open at all times during business hours). Angel’s primary argument that the board did not act in good faith is essentially that it was in the “back pocket” of David Loseff who owns several of the commercial units, whose motive in shutting down the elevator was allegedly to control ownership of the commercial space. However, the board’s decision came about as a result of a unit owner’s complaint that the by-laws were not being followed and after discussions about security. The decision to restrict access was not dictated by Loseff and was clearly not a power grab by him. Moreover, it does not appear that the decision to implement a time clock and change the by-laws was merely a belated attempt to avoid the consequences of illegal conduct, but was arrived at after careful consideration of legitimate factors such as the competing interests of the unit owners and alternatives to accommodate disabled persons. The greatest concern for the HO is the 9 months it took to arrive at the decision to install the time clock. (Installing it took 1 day after it was ordered.) However, it was not simply a matter of the board up and deciding one day to install a time clock. Over that time it only met at most 8 or 9 times. It had to deal with competing interests among the unit owners, at least one of whom complained that the elevator was not being locked in conformity with the by-laws, and then try to strike a balance between those interests. And then there was the question of the by-laws which required that the elevator remain secured at all times. To even begin implementing Angel’s suggested accommodation the board would have to change the by-laws. Further, although his suggested accommodation was reasonable, it was not necessarily the one the board had to implement. Certain members did not agree with Angel that restricting the elevator to swipe key card use violated the public accommodation statute. Under other circumstances Angel’s decision to move out of the Baxter might have convinced the HO that an undue delay had occurred. However, his decision to move was due to his inability to be in control of the situation. When he moved into the Baxter and then for almost a year the elevator was not available to his disabled clients because it was shut down for safety concerns, undercutting his argument that client access via the elevator was critical to his business, and the building he moved into also suffered from lack of disabled access and despite conducting his business from it for 10 months he has yet to obtain an estimate for constructing a wheelchair ramp. Weighing all the factors, the time between restricting the elevator and implementing the time clock solution did not constitute a delay of such length that it amounted to a failure to accommodate.

In any event, even if Baxter Homeowners violated the public accommodations statute, High Street, as its agent, has no liability to Angel. His argument that it “aided and abetted” the property owner to violate the HRA is not persuasive. The common law rule is that an agent cannot be held liable for aiding and abetting the principal when acting in its official capacity on behalf of the principal. Fiol (Cal. 1996). The California Fair Housing Act contains the identical aiding & abetting provision as in the MHRA. While the MHRA is broad, there is nothing in it indicating intent to abrogate the common law rule. However, the fact that an agent cannot conspire with the principal while acting in its official capacity on behalf of the principal does not insulate an agent from the consequences of its own tortious conduct. 3 AmJur Agency §298. The HO has found no Montana HR case that addresses this issue. However, Pelton (NY 2006) held that the property manager owed no duty to the charging party for its nonfeasance under discrimination law. Angel presented no substantial evidence that High Street’s conduct was anything more than following its duty to the Baxter Homeowners’ Association.

Judgment for Defendants; complaint dismissed.