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SCC lawyer settles discrimination suit

A lawyer being treated for sleep apnea has settled his disability discrimination suit against the Virginia State Corporation Commission.

On Jan. 7, Richmond U.S. District Judge John A. Gibney refused to dismiss a suit filed by Jonathan Orne, who served as Senior Counsel and lead lawyer to the SCC’s Bureau of Financial Institutions. The next day, the parties sat down to talk and were able to settle the case, their lawyers said.

In a complaint filed last April, Orne alleged the agency violated the Americans with Disabilities Act when it said it would terminate or demote him.

Orne, who had worked for the SCC since 1986 and as Senior Counsel since 2001, alleged that after Philip deHaas took over management of the department in December 2008, he told Orne his performance was “slipping” and suggested he meet with BFI management. Orne alleged the BFI managers’ only concern was a request that he adjust his hours of attendance, which he did.

deHaas later told Orne he had been seen sleeping on the job, Orne said. Orne’s primary care physician referred him to a sleep disorder specialist and Orne began treatment for sleep apnea with a “Continuous Positive Airway Pressure” machine. The SCC allowed him to use the machine at work.

The SCC gave Orne a termination notice on Sept. 10, 2009, stating he was being dismissed for lack of sustainable improvement in his job performance, insubordination toward deHaas and lack of confidence in his ability to serve as Senior Counsel. When Orne challenged the action, he was offered the alternative of demotion to the clerk’s office, with a $30,000 pay cut.

In his ADA suit, Orne asked to be allowed to stay in the SCC’s Office of General Counsel, as “reasonable accommodation” of his disability.

Prior to the 2008 amendments to the ADA, courts had held that sleep apnea did not qualify as a disability under the statute. But it did in Orne’s 2012 case, Gibney said. The court could disregard the fact that Orne could relieve his symptoms with the CPAP machine’s steady supply of oxygen.

The ADA amendments have opened up the definition of “disability” in line with what Congress intended with the ADA, according to Richmond lawyer Barbara A. Queen, who represented Orne.

Queen and the SCC’s lawyer, Senior Assistant Attorney General Sydney Rab, declined to provide details of the settlement. As of the date the case settled, Orne still worked in the Clerk’s Office, the SCC confirmed.
–Deborah Elkins

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