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Maloney v. MaineGeneral, Health, Inc.

Superior Court of Maine, Kennebec

February 18, 2014



Before the Court is the motion for summary judgment of Defendant MaineGeneral Health, Inc. (MGH) on the sole count of Plaintiff Kelley Maloney's complaint: employment discrimination in violation of the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551-4634 (2013). Maloney is an operating room (OR) nurse who has a latex allergy. Maloney alleges that MGH failed to reasonably accommodate her disability by not providing her with an environment free of latex gloves.[1] Because issues of material fact remain that must be resolved by a fact finder, the Court must deny the motion for summary judgment.


The following facts are undisputed except where noted. See DeCambra v. Carson, 2008 ME 127, ¶ 2, 953 A.2d 1163.

Plaintiff's hiring at MGH.

MGH hired Maloney as a surgical technician in the OR effective December 28, 2010. During her pre-employment physical, Maloney disclosed a sensitivity to latex but did not state she had any respiratory issues from latex exposure. Maloney requested that MGH provide her with latex-free surgical gloves and a hypo allergenic mask upon hire.

MGH's use of latex gloves.

MGH did not use powdered latex gloves; the majority of MGH OR staff used latex-safe gloves, i.e., powder-free, low-protein surgical gloves containing latex.[2] MGH made latex-free gloves available to anyone who wanted to use them, and required their use with patients allergic or sensitive to latex.

Plaintiff's asthma attacks.

MGH did not provide Maloney with a hypoallergenic mask at first. Instead, MGH asked her to try on of their stocked masks first. Maloney experienced an asthma attack after about 10 minutes of wearing one of the stocked masks, which did not contain latex; thereafter, MGH ordered hypoallergenic masks for Maloney.

On January 14, 2011, approximately a week after she began working in the OR, Maloney was helping a surgeon put on latex-safe gloves when she experienced an asthma attack.[3] Maloney herself was wearing a hypoallergenic mask and latex-free gloves. Maloney left the OR and utilized her inhalers to quell the attack.

Plaintiffs subsequent diagnosis and requested accommodation.

Maloney saw Dr. Kenneth McKenzie at MGH's Workplace Health office on the same day of her attack. Dr. McKenzie diagnosed Maloney with irritant bronchitis related to aerosolized latex exposure and recommended she be removed from any exposure to aerosolized latex, but noted there were no objective allergy tests done. MGH found work for Maloney outside the OR until she could be seen by her own doctor.[4]

On January 20, 2011, Maloney saw her primary care physician, Dr. Daniel Gott. Dr. Gott concluded the asthma attack was connected to exposure to the surgeon's gloves because of the timing, Maloney's known sensitivity to latex, and lack of other asthma inducing triggers. Dr. Gott wrote a note to MGH on behalf of Maloney that stated Maloney "may return to work in the operating room however needs to have an environment free of latex gloves which is really standard of care in modern hospitals today due to the high prevalence of latex allergy in healthcare workers." When MGH sought clarification, Dr. Gott stated that Maloney should not be in an OR when those scrubbed in for surgery were using latex gloves. There is a dispute over whether Dr. Gott knew that MGH was utilizing latex-safe gloves when he gave this diagnosis/opinion, and thus whether his diagnosis was sufficient to substantiate Maloney's need for accommodation.

MGH, for its part, questioned whether Maloney had reacted to latex-safe gloves, and if she had, also questioned whether the elimination of latex gloves alone would be sufficient accommodation because of other sources of latex. Accordingly, MGH asked Maloney to undergo allergy testing at her own expense. Maloney consulted with Dr. Gott before undergoing allergy testing, but what Dr. Gott said and recommended is a matter of dispute. Maloney told MGH she would undergo the testing if MGH paid for it, but at this time, MGH would not pay for the testing. Maloney chose not to undergo allergy testing.

MGH's investigation into the requested accommodation and determination on requested accommodation.

In investigating Maloney's requested accommodation, MGH polled 21 surgeons regarding switching to latex-free gloves in the OR. Generally, the surgeons did not wish to use latex-free over latex-safe gloves because the fit and tactile sensation was better in latex-safe gloves, and expressed barrier concerns over switching to latex-free.[5] MGH determined it could not reasonably make the OR an "environment free of latex gloves" as recommended by Dr. Gott, although Maloney notes his recommendation applied only to times when she was present in the OR.

MGH informed Maloney that they could not reasonably accommodate the restriction recommended by Dr. Gott in the OR, but would work to find her another position in the system where she would not be exposed to latex gloves. The parties dispute whether Maloney was offered another position, or if she had to apply for another open position within the hospital. As alternative reasonable accommodations, Maloney suggested that she wear a "Stryker hood" for surgery, and that the OR need only be free of latex gloves when she was ...

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