Veteran daycare worker sues after her lifelong hearing loss leads to her dismissal

By David H. Kirkwood

BANGOR, ME—For 31 years, hearing loss did not prevent Rosemary Kelley from working as a teacher’s assistant in the Sonshine Nursery School in Friendship, Maine. However, in December 2010, Kelley lost her job after the Maine Department of Health and Human Services (DHHS) ruled that because of her hearing loss, for which she wore hearing aids, she did not qualify as a staff member under its daycare licensure regulations.

That ruling forced Sonshine to hire another staff member–one without hearing loss–to keep its license, and led the school to dismiss Kelley.

Last month, Kelley filed suit in Federal District Court in Bangor, accusing the Maine DHHS of unlawful discrimination against her. Her complaint, submitted December 21 by M. Elizabeth Gallie, an attorney with the Maine Center on Deafness, contends that the state’s action violated the plaintiff’s rights under the Americans with Disabilities Act as well as under the Maine Human Rights Act and the Federal Rehabilitation Act.

On January 2, Maine Attorney General William Schneider responded with a motion asking the Federal District Court to dismiss the suit. Schneider noted that Kelley had previously filed a complaint with the Maine Human Rights Commission, which investigated it and ruled that she had not been unlawfully discriminated against.

ISSUE OF SAFETY IN QUESTION

The central issue in the case is whether or not Kelley’s hearing loss prevented her from being “able to provide safe and compassionate services” to the children she helped care for. Under Maine law, for every 12 children in a daycare center, there must be one staff member capable of providing such services.

In September 2010, Brian McAuliffe, an employee of the Maine Division of Licensing and Regulatory Services, visited the Sonshine Nursery School in connection with its license renewal application. After observing the facility, he told the director of his concerns about Kelley’s ability to hear and respond to the children under her supervision in an emergency.

(According to her lawsuit, Kelley was not advised of McAuliffe’s concerns until more than two months after his visit. In fact, she said, when she noticed McAuliffe observing her she asked him if there was anything wrong. He said there was no problem.)

The school’s license was renewed, but on condition that it comply with any “requested corrects” from the DHHS in a reasonable time.

A month later, McAuliffe notified his superior that because of Kelley’s hearing impairment, she could not be counted as a staff member. Since Sonshine had 13 children in the class that Kelley helped supervise and only one other staff member, it would need to take action to meet the required 12-1 ratio.

In November 2010, the school informed Kelley that she would be replaced at the end of the year because of the licensing issue.

In a final attempt to keep her job, the plaintiff e-mailed McAuliffe, saying that it had been “the worst nightmare” of her life to be told she was unsafe for the children that she loved and to be fired. She asked what she could do to keep working with children, but received no options or advice.

In his motion to dismiss Kelley’s complaint, Attorney-General Schneider noted that the Americans with Disabilities Act allows a public entity to consider whether an employee’s disability poses a threat to “the health and safety of others,” as alleged in this case.

However, the suit argues that no safety issue has been demonstrated. It states that McAuliffe had no training or expertise in hearing loss and that he did not request Kelley’s audiograms or a report from her audiologist.

The suit further notes that Maine’s licensing regulations “do not require that child care staff be able to hear.” Rather, they “require staff to provide safe and compassionate services” and “state that each child shall be supervised by a staff member who is aware of and responsible for the ongoing activity of each child and who is near enough to the child to intervene when needed.”

JURY TRIAL ASKED

The plaintiff filed a motion on January 2 demanding that a jury hear the case. If the motion is granted, it will be up to the jurors to determine if Rosemary Kelley was able, despite her hearing loss, to provide the children at Sonshine Nursery School with the “safe and compassionate services” that the law requires.