Friday, November 4, 2011

Awarded Exemplary Manager Fired Due to HIV Status

A couple of weeks ago I wrote about how HIV/AIDS related stigma still exists in the USA. This week I will introduce you to a man who was fired due to his HIV status.

Antonio Munoz is a 47 year old man currently living in New York City. He was diagnosed with HIV during the winter in 2008. When Antonio learned this news, everything stopped for him. He wondered how this could have happened. In his earlier life living in Montreal, Canada, Antonio, he had engaged in alcohol and substance abuse. After moving back to New York City, after eight years as “sober and clean,” and with a new job and health insurance, he went for his first medical physical exam. That's when he found out about his status. He felt that the consequences of his past had caught up with him. It took time to understand the effects of all the medicine he had to start taking. Sharing his status with his close friends was hard, and he was worried about how everyone would react. Antonio was especially worried about how his new job colleagues would take the news. Would he be shunned and treated as an outsider? Would he be the “leper” who deserved what he got, because he is gay? He was surprised to see how well his family and friends took it. However, the news did not go as well with his employer. After sharing his HIV status, he was fired shortly thereafter. Antonio could not believe that after 30 years since the HIV epidemic began, he had to still face stigma and discrimination associated with HIV.

The Case

Tony was working as an Assistant Front Officer Manager for the Manhattan Club Timeshare Association (a hotel) from October 2007 to February 2011. During these four years Tony received an “Exemplary Manager Award” and got two raises after that, one of which was a reward for excellent performance. He was also given a satisfactory written review in 2008. No incidents occurred during 2009. At the end of 2009, Antonio’s doctor told him that his HIV medications were not performing as expected; to improve his health he had to start taking “Sustiva.” This medication must be taken at night since it causes drowsiness; patients much rest after taking it. During this time Antonio was working very long hours during the night shift. His doctor suggested that he change his shift to improve his health. Up to this point Antonio had not revealed his HIV status to his employer; he had made it clear that he had a serious, chronic health condition. The employer never asked him to tell them about the exact nature of his disability. Rather, the employer told him not to tell them what his condition it was when Antonio offered to share the information. After the diagnostic news from his doctor he decided to speak to his employer. He made a verbal request to change his shift and explained to his manager that his chronic condition required him to medicate himself at night requiring which bed rest in order for the medication to take effect. The reply he got was, “The only people entitled to a quality of life are me,” and she also mentioned two other names, who were all managers above Antonio’s rank. Later she also told him that he and all the other managers at his level were to be at the timeshare 24 hours and 7 days a week as required. She also said that she needed him there because he knew the job and she could sleep better knowing that he was there.

Antonio moved on by requesting that his doctor to write a note explaining the importance of how his chronic medical condition required a strict dosing schedule. He also said that if this regime were not followed it could cause substantial health risks. Antonio’s employer did not respond to this explanation. Antonio took the matter to Human Resources office with no luck. These officials told him that the person in charge of the department had authority to do “whatever” he or she decided. However, the Human Resources staff person promised to talk to the head of his department.

On February 1, 2010, Antonio was in a meeting with the people involved and they asked him for how long he had to be on this proposed scheduled change. He explained that he had to medicate himself for the rest of his life. Both of them stated that Antonio knew what the job required from him; if he could not do the job, he could quit. Antonio was denied the change of schedule, even though there were two other employees who said they were willing to take his shift. At this point Antonio asked for the denial in writing but this request was ignored. He requested a week off to think about what he should do and to seek his doctor’s advice. The MD told him that this specific medicine was the best way to ensure that his health improved.

After a week off, Antonio went back to work and was surprised to see that he was put on the day shift. He felt glad that the issue had solved itself. Everything went on as normal for two months. However, the following April 15th the same year he was put back on the night shift. Antonio invoked FMLA and requested intermittent leave; he also filed a complaint of disability discrimination as a result of not being accommodated. After the complaint he was told he could go back to the day shift but at this moment, his employer began retaliating against him. Before the request for an accommodation, the manager praised Antonio; shortly thereafter she wrote up his 2009 evaluation which was misdated to 2008. The evaluation was negative and full of falsehoods. After this, his manager never discussed anything of substance with Antonio. She did not respond to emails. After a while, the employer put Antonio back on the night shift whenever a night worker was sick.

Later he returned to a daytime shift. On February 11, 2011, Antonio was fired. He was told he lost his job because of a customer complaint dating from December 2010. Antonio had never heard about this complaint until the day he lost his job. Antonio believes there never was any complaint; if there were a complaint, the hotel had never mentioned (???) it. Customer complaints were a constant at his job but had never been a cause for termination without explanation. Still today Antonio knows nothing about this customer complaint. He thinks it is pretty clear why he got fired so he decided to pursue his legal options against his former employer. He invoked his rights under the ADA (Employment Rights as an Individual With a Disability) and FMLA (Family and Medical Leave Act).

I asked Antonio what effect losing his job had on him. He told me he felt he had lost his self- worth. Dealing with the HIV illness and the self-imposed stigma was too much to handle at the time. After losing his job Antonio started suffering from depression. He went on unemployment benefits in the absence of a job. When he started to feel better he decided to be pro-active, be his own advocate. Today Antonio is enrolled at Fordham University getting his CASAC (credentialed alcohol and substance abuse counselor) training. He is looking forward to working again.

We at Global Action on Aging wish Antonio much good luck as he moves forward. And we will try to give you updates to let you know how things are going for him!

Sanna Klemetti

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