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News / Clark County News

Larch officer’s suit alleges discrimination by Washington DOC

Complaint: Vancouver man’s job was changed after hearing surgery

By Jessica Prokop, Columbian Local News Editor
Published: September 1, 2021, 6:05am

A Larch Corrections Center officer is suing the Washington Department of Corrections, alleging he was discriminated against over a hearing loss condition.

Vancouver resident Todd Atwell, represented by Navigate Law Group, filed the complaint Friday in Clark County Superior Court. The claims include disability discrimination and retaliation for opposing unlawful employment practices.

“While the department does not comment on ongoing litigation, we take all allegations of discrimination seriously and work hard to provide a safe and inclusive work environment,” DOC Deputy Communications Director Rachel Ericson said in an email Monday.

According to the complaint, Atwell was hired by the DOC in 2013, at which time, managers were aware he suffered from a hearing loss condition. For many years, he used hearing aids in both ears. His disability did not prompt any alleged performance concerns prior to May 2020.

But on May 8, 2020, Larch Superintendent JC Miller and Human Resources Manger Daniel Scheetz approached Atwell to discuss concerns about his hearing condition. He was subsequently forced on administrative leave for a few days and then had to use his saved vacation and sick leave, beginning May 12, the complaint states.

Because he was forced to take leave, Atwell requested and was approved for medical leave on May 21, 2020, in part, due to a cochlear implant surgery scheduled for June 19, 2020, and recovery period, according to the complaint. He requested medical leave until mid-August.

The complaint alleges that prior to surgery, the DOC did not offer him a temporary position or any accommodations.

On Aug. 17, 2020, Atwell’s doctor gave him a return-to work form. He met with Miller and Scheetz three days later, the complaint says.

“During the meeting, without warning, and without any medical background or training whatsoever, Supt. Miller and Mr. Scheetz began to subjectively ‘test’ Mr. Atwell’s hearing. These alleged ‘tests’ included Mr. Atwell being asked to repeat numbers relayed over radio by Supt. Miller and Mr. Scheetz. These alleged ‘tests’ were performed on an open radio channel and could be heard not only by colleagues but also inmates at LCC,” the complaint reads.

Scheetz then wrote an Aug. 26, 2020, email to Atwell, claiming Miller observed that Atwell was “not able to communicate safely and effectively” based on the tests. Scheetz indicated Miller was considering reducing Atwell’s pay to that of an office assistant, according to the complaint.

Atwell contacted his union representative, who demanded that he be able to return to work with full pay, the complaint states.

He was allowed to return Aug. 31, 2020, but not to his old position, the complaint says. From Sept. 4, 2020, until March 5, he was reassigned to conduct COVID-19 screenings at the facility’s entrance.

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According to the complaint, in an early September 2020 weekly staff meeting, Miller allegedly “mentioned to all staff that were present that they should keep tabs on Officer Atwell’s hearing and document any safety issues.”

However, Atwell’s complaint says that his hearing continuously improved after surgery. His audiologist submitted a letter to the DOC stating his ability to detect sounds was at normal or near normal levels.

But in January, Scheetz emailed Atwell and said he would be required to attend a fitness for duty evaluation. In a subsequent letter, Atwell was told to attend a fitness for duty medical exam in February, the complaint states.

In a Jan. 20 letter sent to Larch leadership, it noted Atwell had not been given any reason for the DOC ignoring his medical providers’ documentation nor alleged deficiencies in the documentation, according to the complaint.

After continued back-and-forth about Atwell’s fitness for duty, he returned to his position March 5.

He is seeking economic and noneconomic damages, attorneys’ fees and costs, prejudgment interest and any other relief.

“It appears that the only ones with selective hearing are the individuals in charge at Larch Correction Center,” Atwell’s attorney Colin F. McHugh, of Navigate Law Group, said in a news release. “Officer Atwell and his medical providers made it abundantly clear that he was fit for duty, and his superiors arbitrarily kept him out of his regular bid position and humiliated him with their unqualified hearing ‘test,’ broadcasting the situation to all of Officer Atwell’s colleagues and inmates, as well. There is no reason why he should have been treated like that.”