Heather Burke was hurting.
Radiation to destroy her breast cancer had burned her flesh, another setback for her as summer softened into Labor Day. Then came an email from her boss that made her convalescence more painful.
Ed Burckle, Cabinet secretary of the state General Services Department, informed Burke in the email that she was being fired from her $71,000-a-year job in the technology and computer systems bureau.
“Because you are unable to work, GSD has determined that you are unable to perform the essential function of any vacant positions at GSD, with or without reasonable accommodation,” Burckle wrote to her.
Burke, a 41-year-old single mother, found the stated reason for her firing to be peculiar.
“They have never asked me if I could work,” she said in an interview. “They’re supposed to ascertain that information, but they didn’t even try.”
She says she can still do her job with breast cancer, and is ready to return to work, at least on a part-time basis.
Breast cancer is more than a disease to Burke. She says it’s the excuse her bosses have used to take away her livelihood.
Burke has worked in the General Services Department since January 2013. She claims she became a whistleblower about wrongdoing in the computer bureau starting in 2014, before her cancer.
Now she alleges that Burckle and his managers have retaliated against her for pinpointing misconduct, first by disciplining her on petty charges, then by firing her.
Burke says the workplace was so poisonous that, after she was diagnosed with cancer, Human Resources Director Angela Dawson ordered her in an email to clock out and subtract time from her personal leave when she talked by phone to her doctor.
“Nobody else has to do that for personal calls,” Burke said.
Her supervisor, Karen Baltzley, declined to discuss Burke’s work history or allegations of retaliation.
Estevan Lujan, a spokesman for the General Services Department, discounted Burke’s claims. “Those assertions aren’t true,” Lujan said in an email. “Obviously we can’t get into the details; state law prohibits disclosing confidential personnel information. But employment actions taken on this employee were not retaliation.”
Burckle’s email telling Burke she would be fired was dated Aug. 31. It said: “The General Services Department is contemplating dismissing without prejudice you from your position as of September 1.” The Cabinet secretary’s tangled syntax meant Burke’s termination would take effect in less than 24 hours.
In a six-page letter, he went on to say that Burke had exhausted her annual leave and family medical leave. She maintains she still has short-term disability leave available. She also says Burckle violated the federal law protecting people with disabilities by firing her.
Burke has had numerous confrontations with her supervisors, beginning more than a year ago. She admits to making a mistake in computer security by failing to safeguard a password. Her bosses finally decided this July, while she was being treated for cancer, that she would be suspended for 30 days for professional misconduct in the breach of security.
But Burke says it took her bosses 40 days to change the computer password that she had left unprotected, demonstrating that her mistake was benign. The Communication Workers of America has filed a grievance on her behalf, saying Burckle’s managers missed the contractual deadline for investigating and disciplining her. She still has not served the suspension, and the dispute over the penalty would be moot if her firing stands.
Burke’s supervisors have alleged that she committed other violations, including insubordination for challenging managers. Another complaint against involved a state dress code and Gov. Susana Martinez.
Burke arrived for a work detail at the governor’s mansion in September 2014 wearing shorts and a T-shirt. Security officers escorted Burke off the mansion property because of her attire. For her part, Burke said she wore shorts to the mansion because she had recently undergone knee surgery, an explanation Baltzley did not accept.
“… As I understand it, the governor was on site,” Baltzley wrote in an email to Burke. “Even with your surgery and not being able to wear long pants, it would have been appropriate to wear a long skirt vs. shorts.”
Burke replied: “… When she complained about my shorts, did anyone defend me to say I just had knee surgery five days before? And that I have a doctor’s note on file to allow for a deviation of the dress code? Why is it so easy to make [me] the bad guy these days?”
In two complaints to the U.S. Equal Employment Opportunity Commission, Burke calls herself a whistleblower. She says she uncovered computer security violations by others in state government and reported them to her superiors. She alleges they did nothing except try to get rid of her for speaking up.
For example, she says a co-worker botched the setup of a wireless network, leaving no control over access to websites. “They actually could have hosted kiddie porn, and we would never have known who was on the site,” Burke said.
In Burckle’s email to Burke, he gave her 11 days to contest her firing. She says she has done so, in writing.
Burckle and his executives may or may not have a defensible case against Burke because of her work record. What’s clear at this stage is that firing a cancer patient via email is sure to escalate her grievances and open the way for the confrontation to reach a courtroom.