The saga of my termination by DePaul College of Law for having uterine cancer is about to come to an anticipated and unwelcome resolution. I spoke today with a representative of the EEOC who informed me that he is recommending that the EEOC close its file on my case and issue what is called a right to sue letter. I will have 90 days to hire an attorney to litigate the matter at my expense.
My summary of the report is necessarily brief because of the blog format, and that I must wait to receive the right to sue letter to see the actual conclusions before I may request a copy of the file under the Freedom of Information Act to learn more. This is my understanding of the EEOC investigation’s conclusions at this time:
1. My termination was not a violation of the Americans with Disabilities Act. According to current thinking, it was reasonable for the law school to terminate me after a positive test for cancer on Tuesday and before my Friday surgery because the university had a reasonable need to make sure I only missed one Friday class and I could not assure them sufficiently that I would in fact return Monday before my Friday surgery took place. I could ask to be accommodated for missing one Friday class, but apparently not for the weekend to see if I was able to return the following Friday.
It apparently does not matter that I was able to work the following week and every week thereafter. What matters is that no one could know before my surgery what would happen after it.
I guess the moral of the story with cancer is not to tell if you become sick. Had I given no information that my condition was cancer then the university would not have been so alarmed as to terminate me for having cancer.
Let’s recall what the person who terminated me put in writing:
Dear Cheryl: I was so alarmed to hear from Martha that you had to have surgery last week, but so pleased to hear from her that you are already on the road to convalescence! Please take care of yourself and don’t overdo it in an effort to achieve normalcy too quickly. You have been through a lot—both physically and emotionally—and you can’t expect to bounce back with no set-backs.
I understand that you are eager to return to your class this semester, and I know that your students would be delighted to finish out the semester with you; many of them have expressed concern about your health and enthusiastic appreciation for your instruction. I need to let you know, though, that after fully consulting with the Dean of Faculty, I felt compelled to make the decision to reassign your students to other LARC III sections. I sincerely hope that you recover from the surgery immediately, but it has been my experience that people in this situation always have slower come-backs than they anticipate. I had no way to hedge against the risk that you might return to teaching this week and then right away, or a few weeks later, find yourself simply unable to continue. My first responsibility is to the students’ learning and the smooth functioning of the LARC department, so I made the decision that increases the chances of maximizing both. I am sorry if my decision disappoints you, and I hope that you are able to understand the situation from my perspective.
We have every hope and expectation that you will be fully healed and able to teach in the Spring semester, and we will welcome you back in January with pleasure. If we can do anything for you in between now and then, please let me or Martha know. You have my every wish for your quick return to health and the fullness of life.
That letter doesn’t say I was terminated on the day of my surgery because I might not be able to work the next week. It says people with cancer always suffer setbacks and I might return and later prove unable to continue. If you cannot expect a law school to say what it means, then when should words put in writing matter, if ever?
2. Failure to pay the remainder of my contract for November to December 2011 until the following August in 2012 was just a “glitch.” The dean of the law school promised to pay me the remainder of my contract and then paid one last check and stopped. I was not paid until all my contracts for the academic year were completed, I determined the shortfall, and figured out which part of the university failed to pay me. But this was just a “glitch.”
And the reason it was a glitch and not intentional is that the university made a glitch in my favor in fall 2012 when it notified me that it would not offer me the class I taught every year for seven years but would pay me to teach a different class for the same money that semester.
In spring of 2013 it cut the pay for that replacement class in half. It now claims that the letter that offered me higher pay for fall 2012 was a glitch in my favor and the letter that cut the pay in half again for spring of 2013 was part of a preexisting plan.
If that does not make sense to you, then we are in agreement. The explanation does not rule out intention to punish me for making a complaint to the EEOC. I made more money before I had cancer than I made after the university received formal notice of my complaint to the EEOC.
The EEOC may take the position that the two “glitches” cancel out an argument of intent to deprive me of pay in 2011. I guess the lesson here is to not employ self-help. Had I not asked for payment before filing a complaint with the EEOC, not told the university I was filing, and waited to see if the fall 2012 glitch in my favor actually occurred, then it might not have occurred and it would have been difficult to show any glitches occurred. I would then–possibly–be able to show intent to deprive me of pay.
The fact that I was uninsured and needed my income to pay medical bills and that the delay from November 2011 to August 2012 caused me financial hardship is irrelevant. Money paid eight to nine months after it was due was paid soon enough to rule out discrimination.
The fact that I was declared unreliable and deprived of the opportunity to work is of minor significance to anyone but me. It appears that people paid to stay home miss nothing because the opportunity to work is not itself a right. Have you ever worked really hard for less money than you deserved to be paid and been proud of your work? Well, then you may understand why being deprived of my work when I was dealing with a cancer was painful to me, whether or not I was eventually paid to stay away.
3. No retaliatory intent or actions. The university revealed to the EEOC a preexisting plan (not shared with me even as of this date) to cut adjuncts to one course per calendar or academic year–which ostensibly explains why I was cut down to one class per semester after my diagnosis. I am not convinced this was the preexisting plan, but will have to see the file to learn more.
Additionally, while some witnesses overheard and reported statements that may have indicated some negative feelings toward me by the supervisor who terminated me and disparagement of my reputation to others at the university, that was “he said/she said” testimony and not sufficient for the EEOC to pursue further.
I wait now for the official letter to confirm my understanding of the findings. And I have a bad taste in my mouth. Sometimes what people do to you after you are diagnosed with cancer feels hard to bear, too.
But all of us who have faced such a diagnosis learn we are stronger than we thought. Cancer has tested me in many ways and I wake up every day since my diagnosis dealing with things that I never imagined would happen. Disappointment in the behavior of some people and institutions that surround me sometimes seems to go with the territory.
What will see me through this situation is the strength drawn from the other people and institutions that are there to lend an ear, a shoulder, a hand or a smile during the dark, dark days that have followed my cancer diagnosis. I appreciate everyone who has kept my faith in the goodness of people alive during the last two years. Thanks to you, I will never be down or out.