Washington Blade - July 26, 2002
Rhonda Smith

The Office of the Corporation Counsel, which conducts all of the District's legal business, paid $80,000 to settle a lawsuit brought by Wayne D. Harrell, alleging HIV-discrimination and retaliation.

Under the settlement, the OCC did not agree that it had violated any law, and Harrell resigned from his position as a computer specialist there. The Office of the Corporation Counsel agreed, however, to participate in a training session conducted by Whitman-Walker Clinic, an AIDS service organization, on issues pertaining to HIV/AIDS in the workplace.

"Unfortunately, HIV discrimination is still very much with us," said Daniel Bruner, associate director of litigation and advocacy with Whitman-Walker Legal Services. "I wish I could say it was pretty much a thing of the past, but that's certainly not our experience."

Whitman-Walker's Legal Services division worked with the plaintiffs in both cases.

Peter Lavallee, a spokesperson for the Office of the Corporation Counsel, said officials there declined to comment on Harrell's case.

The Florida Avenue Grill, a soul food restaurant in Northwest Washington that opened 57 years ago, agreed to pay an employee there, identified only as "John Doe," $34,500 as part of that legal settlement. Restaurant representatives also agreed to take part in special training on equal employment opportunity laws and practices after the employee alleged that he was discriminated against based on his HIV status.

Neither Florida Avenue Grill officials nor William Sherman, the restaurant's attorney, were available to comment.

District's lawyers sued

The dispute between Harrell, who earned a bachelor's degree in accounting from Morehouse College in Atlanta, began shortly after he was hired to work as a computer specialist in the Office of the Corporation Counsel in October 1997. The OCC is under the direction of the mayor.

Harrell had been diagnosed with AIDS when he began working at the OCC, and was considered disabled under the federal Americans with Disabilities Act. His complaint states that he suffers from symptoms related to his illness, including chronic fatigue, chronic pain, and bronchitis, and doctors had advised him not to lift, push, pull, or carry heavy objects.

Before mid-1998, the complaint states that it had not been a regular part of Harrell's job to move heavy pieces of computer equipment.

At some point after Harrell was hired, Carmella Cowgill began working at the OCC as deputy corporation counsel for management and became Harrell's supervisor.

The complaint states that Harrell told Cowgill about his medical condition and presented her with forms from a medical provider stating that he was disabled. "[Harrell] explained that he suffered from frequent episodes of extreme fatigue and specifically requested to be excused from lifting and carrying computers, and pushing and pulling office furniture," the complaint states.

"Ms. Cowgill refused Mr. Harrell's request, and failed to make a reasonable accommodation for his disability," the complaint alleges.

In the summer of 1998, Cowgill ordered Harrell to take apart and move computer equipment when the OCC's Enforcement & Criminal Division relocated to another building. This would have required Harrell to disassemble about 200 computer workstations, the legal document states, "including various heavy components such as computer monitors, central processing units, printers, etc."

When Harrell renewed his request with Cowgill for a reasonable accommodation, the complaint states that she refused and would not excuse him from this task.

"Further, Ms. Cowgill told Mr. Harrell that if he could not lift, there was nothing else for him to do at OCC," the complaint states.

Harrell eventually submitted a written complaint to the OCC's Equal Employment Opportunity office, stating that he was disabled and being discriminated against at work based on his disability. Despite the complaint and a letter from an EEO officer instructing Cowgill not to take any retaliatory action against Harrell, the complaint states that the retaliation continued.

"By assigning Mr. Harrell to supply room duties and taking others steps to deprive him of opportunities to work on computer-related projects," the complaint states, "Ms. Cowgill caused Mr. Harrell embarrassment, humiliation, and feelings of lack of self worth, among other things."

In August 1999, an EEO officer issued a formal, written determination that Harrell was disabled and that the OCC was legally obligated to afford him a reasonable accommodation.

In September 1999, Harrell filed a complaint with the D.C. Office of Human Rights, a federally approved fair employment practice agency. The defendant in the lawsuit, the District of Columbia, denied Harrell's allegations.

In May 2001, Harrell obtained a "right-to-sue" letter from the U.S. Department of Justice's Civil Rights Division. He sued based on discrimination in violation of the ADA, retaliation for exercise of rights under the ADA, discrimination in violation of the Rehabilitation Act, retaliation in violation of the Rehabilitation Act, and intentional infliction of emotional distress. Harrell's attorneys included Whitman-Walker Clinic Legal Services and the law firm of Beveridge & Diamond, P.C.

As part of the settlement agreement, issued last month, Harrell agreed to resign from his position as a D.C. government employee.

Restaurant cook claims bias

An unidentified employee at the Florida Avenue Grill brought a lawsuit based upon events he says took place after the man's roommate called the restaurant in August 1999 and told officials there the employee was HIV-positive. The employee had been hired at the restaurant as a dishwasher in January 1999 and promoted to cook assistant a month later.

After talking with the roommate, the employee's supervisor insisted that the man take a medical exam to determine his HIV status, a legal document from the U.S. Equal Employment Opportunity Commission about the case states.

"Under the Americans with Disabilities Act of 1990, an employer cannot request or otherwise pressure an individual to disclose his or her medical condition," the document states.

In September 1999, the EEOC document states that the employee was instructed at work to avoid touching food and "to just do the dishes." Witnesses also testified that they heard a rumor at work about the man's health condition.

The plaintiff was fired after informing the assistant manager that he would be off from work for a doctor's appointment.

Bruner at Whitman-Walker Clinic said the Florida Avenue Grill argued that the employee was not fired because of his HIV status.

"They argued that they fired him because he didn't show up at work one day," Bruner said, noting that the worker said he had gotten permission to be off work for the medical appointment.

The EEOC investigation concluded that the restaurant violated the ADA by "limiting [the employee's] duties and discharging charging [him] because of his disability," as well as "by not keeping [the employee's] disability information confidential and requiring him to take the medical exam which was not job-related."

The Florida Avenue Grill denied the allegations in the employee's complaint but agreed to participate in formal training in equal employment opportunity laws and practices.

News reporter Rhonda Smith can be reached at rsmith@washblade.com.

FOR MORE INFO / D.C. Office of Corporation Counsel / 441 4th Street, NW, Suite 1060N / Washington, DC 20001 / 202-727-3400 / www.occ.dc.gov

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