Lawsuit against Webber Oil will proceed

BANGOR – A federal magistrate judge has denied a request by Webber Oil Co. of Bangor to dismiss a lawsuit by a former manager at the company who claims he was fired after he notified company president Larry Mahaney that he had been diagnosed with prostate cancer.

Hubert E. Saunders, 60, claims he was the victim of intentional discrimination because of a disability, and that the company violated the Americans With Disabilities Act. the Family Medical Leave Act and the Maine Human Rights Act. The lawsuit also contains a claim of fraud arising from Saunders’ 1997 employment termination after he was convinced weeks earlier to stay with the company and to give up a better-paying job with a competitor.

In a recommendation issued Nov. 17, Magistrate Judge Margaret J. Kravchuk denied Webber Oil’s motion for a summary judgment in the matter, although she said that simply having cancer does not qualify him for ADA considerations. The fact that the company seemingly viewed Saunders as “damaged goods” after his cancer became known forms a basis for at least one of the claims in the case, she ruled.

The effect of Kravchuk’s decision, most likely, will mean a jury trial for the case. The decision also paves the way for Saunders to sue for punitive damages, which normally is a monetary award. No money amount is mentioned in the lawsuit, but cases involving ADA violations have a cap of $300,000 plus attorney fees and other costs. The trial date has not been scheduled, although Saunders’ attorney, David Webbert of Augusta, said he expects it to be “soon. I would hope it would be set for January or February (2001),” Webbert said.

Webbert said the claims were “egregious” and strong enough for the judge to find them credible. Judges throw out 90 percent of such cases before they reach trial on a national level, giving an indication of the strength of this case, according to Webbert.

Webbert said his client is “very happy” with the magistrate judge’s decision. Recommending all the claims go to the jury is a “complete victory for Mr. Saunders at this point. He really wants this case to be heard by a jury. He’s convinced that will produce a fair result,” Webbert said.

Bangor attorney Thad Zmistowski is representing Webber Oil Co. and Webber Energy Fuels in the case. On Monday, Zmistowski said, “We’re pleased that the magistrate judge agrees with us that Mr. Saunders was not disabled within the meaning of the ADA because of his prostate cancer. At the same time, we feel very strongly that the entire case should be dismissed on summary judgment. We will be invoking our right to automatic de novo review by the U.S. District court judge.” As a matter of procedure, U.S. District Court judges can reconsider motions already decided by the magistrate judge. De novo review simply invokes that privilege.

In her recommendation, Kravchuk wrote that Saunders had cancer but that fact alone does not qualify him for an ADA claim. His employer, for years, had not considered Saunders unable to perform his duties, the judge concluded.Yet, after word of his prostate cancer came out, Saunders apparently “became ‘damaged goods’ who would not be reliably available to work during the winter season,” in the eyes of his employer, Kravchuk wrote.

The judge also listed reasons to let a jury decide whether Webber Oil had violated the Family Medical Leave Act. She compared Saunders’ case to “the pregnant worker who is fired when she announces that she is planning to take maternity leave.”

The case pits a former manager who worked in Webber Oil’s Auburn subsidiary against a corporation for whom he had worked since February 1993. In September 1997, Saunders received a better offer from a former employer, Agway Petroleum Corp., and he submitted his resignation. About a week later, Mahaney reportedly offered Saunders a higher level position if he would stay with the company. His new job was to be vice president and Maine regional manager. It included a raise and a requirement that he move to Bangor, according to the lawsuit.

Eleven days later, Saunders disclosed to Mahaney he had been diagnosed with prostate cancer and might undergo treatments later that fall. About a week later, Saunders was told by a Webber Oil human resources manager that he would not be replaced at his Auburn position and that it would be at least two years before he moved to Bangor. The lawsuit states that on Oct. 16, 1997, Saunders and Mahaney talked during a company conference in Northport after Saunders’ promotion had not materialized. Mahaney reportedly asked him about his condition. Saunders said his cancer treatment might involve being out of work three to five days, and Mahaney reportedly replied “no more than five days because that’s all the sick days you get,” according to the lawsuit.

On Oct. 21, 1997, the two came into contact again during a meeting, and Mahaney reportedly became angered when Saunders commented about how much harder it was to manage subsidiaries and people than it was 30 years ago.

“Mahaney then recessed the meeting and called Saunders into his office down the hall,” the lawsuit states. At that point, he “expressed his displeasure at the perceived insult that Saunders had just caused him.”

Saunders “apologized for his remark, indicating he intended no offense by it,” the lawsuit states. A day later he was fired.

A month after his termination, Saunders underwent cancer surgery at the Lahey Clinic in Boston. He has been in remission ever since. He now lives with his wife in the Bangor area and works at another job, according to Attorney Webbert.

In Kravchuk’s ruling on the dismissal, the magistrate judge recognized there was considerable dispute between Saunders’ and Mahaney’s versions of what led up to Saunders’ firing. Mahaney claims he had received reports from others of disparaging remarks about Mahaney’s age and management practices before the Oct. 21 incident.