A Payson counseling and social services agency has sued a former employee for defamation because he complained on his Facebook account and in interviews with the newspaper that he was fired in large part because his infant son’s grave illness cost the agency’s health plan too much money.
Horizon Human Services filed the defamation suit against Gary Austin, whose son, Christian, suffered a mysterious and nearly fatal paralysis and had to spend months in a Phoenix hospital.
In a complaint filed on Aug. 21 in Payson, Horizon Human Services, a non-profit organization offering behavioral health services, alleged that since the company had fired Austin at the end of June, he had a pattern of, “posting libelous and defamatory statements about Horizon on the Facebook page...(and) providing libelous and defamatory statements to reporters for a story appearing in the Payson Roundup newspaper...”
Austin made statements on Facebook about his firing, accusing the CEO and COO of the Payson Horizon office of firing him due to his son’s serious illness.
Austin’s only child, Christian, almost died from paralysis earlier this year. Doctors believe the year-old suffers from a Chari malformation at the base of his skull.
Chari malformations appear at the base of the skull where the spinal cord enters. The too-small opening causes spinal fluid to build up, which can result in various degrees of paralysis.
In Christian’s case, doctors feared his arms and diaphragm would remain paralyzed. Doctors put in a tracheotomy to help him breathe, and nurses gave him physical therapy.
Community members and Facebook users around the world rallied to Christian and his family’s aid with donations and notes of encouragement as Christian went through surgery and therapy to regain the use of his arms and legs.
Horizon fired Austin in late June, three months after his son was flown to Phoenix Children’s Hospital where he stayed until his release on July 25.
Austin claimed the CEO and COO of the Payson Horizon office fired him because they did not wish to pay the increased insurance premiums.
In its suit, Horizon claims that from the start of Austin’s employment, he had a pattern of disregarding company policy.
Horizon said Austin failed to turn in required clinical documentation and corrections of progress notes. As a result, the company issued Austin two letters of concern that Austin allegedly signed agreeing to a plan of correction because he had not adequately followed company policy.
Horizon states in its suit that Austin offered to become a foster parent to one of the children participating in the outpatient-counseling program without telling his supervisor. This last infraction generated a Formal Plan of Correction and caused the company to put Austin on probation, from which he could not access benefits.
In his response filed in the court, Austin replied that signing the letters of concern and formal action plan did not mean that he agreed. Instead, Austin claims the CEO routinely issued such letters without a background investigation and Austin has evidence and witnesses to rebut Horizon’s arguments.
In Austin’s comments on the Facebook page he set up to spread information to the more than 10,000 supporters from around the world who sent donations to help the family pay for thousands of dollars in medical bills and other costs, Austin strongly spoke out about his firing.
In a complaint filed in Gila County Superior Court, Horizon quotes Austin’s Facebook post, “The COO of Horizon Human Services, Billie Holliday, was the architect of my termination, and the CEO, Norman Mudd, was the one who executed it. They have fired many sick employees without a thought or care in the world for the horrible position they are placing those people in.”
Each month Christian spent in the hospital, his medical bills came to more than $395,000. Both Austin and Horizon admit that the company’s medical insurance covered these costs. Austin said once doctors put the tracheotomy into Christian, the family qualified for AHCCCS on top of the company medical insurance.
In its lawsuit, Horizon explains why it fired Austin. The company claims Austin had a history of violating agency policy and procedure, which increased after his child got ill.
Yet Horizon also admits in court documents that in the 15 months that Austin worked for the company, he received two promotions.
What forced the hand of the CEO and COO, however, was the amount of time Austin took off to help his ailing child, according to the court filings.
In the lawsuit, Horizon admitted that Austin put in Family Medical Leave Act (FMLA) paperwork and that Horizon modified his work schedule, “despite no obligation to do so, since Austin was under probation with no access to benefits for prior substandard work performance,” the Horizon lawyers wrote.
But in Austin’s response, he asserts otherwise. Austin says the Family and Medical Leave Act allowed him to take off the unpaid time he needed, even intermittent time, to make tough medical decisions regarding the health of his son.
Austin asserts he kept up with his caseload and called in to inform Horizon employees of his schedule and that he had a right under the FMLA to require the schedule he did.
In 1993, the federal government passed the FMLA to aid families in just this sort of position. Prior to passage of the FMLA, people who left work to have a baby or care for a sick relative had no guarantee they would still have a job on their return.
The FMLA required employers, (with more than 50 employees), to hold a job open for a period of 26 weeks within a 12-month period. Workers could then return to a job with similar pay, benefits and responsibilities. The act states that an employee may take the leave intermittently or on a reduced work schedule.
Any employee on the job for 12 months and at least 1,250 hours can qualify.
The FMLA also forbids an employer from denying access to FMLA rights under the act or to fire an employee for exercising those rights.
In its suit, Horizon lists as reasons for his firing other infractions of company policy Austin made besides the irregular schedule.
In a statement sent to the Roundup, Horizon said, “At Horizon, our top priority is providing the highest level of care and counseling to the people we serve. Our core policies, which have been in place for years, set high standards for all Horizon employees. Put simply, Gary Austin no longer works for this organization because he chose to flagrantly violate our policies on a number of occasions.”
Austin denies the allegations.
While fighting the suit, the Austin family continues to see improvement in Christian’s condition. Since coming home at the end of July, Austin has posted on Facebook pictures and updates on Christian’s status. His tracheotomy has been removed, and he now goes to physical therapy each week to help him talk, walk and use his arms, but the situation still creates medical costs stemming from Christian’s continued therapy and procedures.