MAXWELL:  HIV positive, job negative

8/18/1996 – Printed in the PERSPECTIVE section of the St Petersburg Times Newspaper


Fiction and reality often are indistinguishable. Philadelphia, the hit movie, is a fictitious tale of a lawyer who is fired after colleagues discover that he has AIDS. In real life, David Windstrup, a loyal employee who had favorable performance evaluations, has HIV. Today, he is out of a job.

Windstrup, a 51-year-old Clearwater resident, was employed as a well-paid maintenance supervisor with Smith & Nephew United Inc., an international medical products manufacturer in Largo. In April of 1991, Windstrup and his wife, Diana, decided to increase his life insurance with State Farm, his private carrier. After a routine saliva test, a nurse telephoned a few days later to say that Windstrup needed a full physical before a new policy could be written.

The problem was that his saliva test had indicated possible exposure to human immunodeficiency virus, which causes acquired immune deficiency syndrome.

Frightened, Windstrup underwent anonymous testing at the county health department, where he learned that he definitely has HIV. How had he contracted the virus? Windstrup recalled the years of unprotected sex before marriage and the handful of infidelities. He immediately told his wife everything and began treatment with Dr. Dorece Norris of Tampa. Diana Windstrup, although devastated, remains with her husband and supports him in every way. She has been tested many times and is free of the virus.

Initially, according to court documents, Windstrup paid the medical expenses himself. Soon, though, his money ran out, and he was forced to begin filing claims with his employer’s carrier, Liberty Life Assurance Co. of Boston. Meanwhile, because he needed a male confidant, Windstrup said, he told his immediate supervisor, a hunting and fishing companion, about his illness.

With five full-time crew members and several temporary workers reporting to him, Windstrup maintained all production equipment, the physical plant and the grounds. He also was responsible for facility security and had 24-hour access to all areas.

But in January of 1992, the magic died. Without warning, Windstrup testified in court, his crew members were reassigned, and Windstrup was left to work alone. “I was given jobs ranging from plunging toilets to mopping floors,” he said. “The only plausible explanation was that management had knowledge of my HIV status. No one else’s role in the company had changed as drastically as mine. Although I was humiliated, I stuck it out.”

Soon, the company let Windstrup train and supervise a newly established in-house cleaning crew that washed and waxed floors. Again, without warning, his crew was taken away, and Windstrup was back to cleaning alone. A short time later, he was given a new job of writing in-house cleaning procedures. For about a month, he was treated well, which made him think that perhaps he was not being discriminated against because of his HIV condition.

But the old suspicions returned. In October of 1992, Liberty _ for the first time _ refused to pay for a T-cell test until Windstrup’s doctor provided more information, including the results of a complete diagnosis of his HIV status. This action, the insurer said, was on behalf of Smith & Nephew, which had final say in approving benefit payments.

Knowing that T-cell tests are used to monitor people with HIV, along with other ailments that suppress the immune system, and suspecting that company officials knew about his condition, Windstrup refused to comply with the request. If company officials were questioning his T-cell test, his doctor said, then they believed that he was HIV positive.

On Jan. 6, 1993, he was ordered to report to the director of operations and the human resources manager. Due to reorganization, he was told, the maintenance supervisor’s position had been eliminated, and he was being fired immediately. For Windstrup, the close timing of Liberty’s examination order and his firing were confirmation of his suspicion that higher-ups knew of his HIV status.

According to court documents, Windstrup was entitled to unemployment compensation and could receive $7,161.60 in severance pay if he signed a waiver and release of claims stating that, if he accepted the money, he could not sue the company. When he refused to sign, all of his benefits were cut off immediately. Windstrup filed a lawsuit, alleging that the company had fired him because officials knew that he is HIV positive. He sought a jury trial, but the judge ruled against him.

Windstrup is appealing. And well he should. Although Cathy Brenholts, Smith & Nephew’s director of human resources, could not comment on pending litigation, she said that court documents reflect the company’s position. In the documents, executives argue that they did not know about Windstrup’s HIV status before firing him.

In an affidavit, however, Michael Joslyn, a former chief project engineer for the firm, said that he discussed Windstrup’s illness with the vice president in charge of operations before the firing. Shortly after learning of Windstrup’s condition, the vice president barred Windstrup from touching certain equipment, Joslyn said.

Even if the company did not know about Windstrup’s condition, officials apparently violated their long-standing policy of not firing hourly employees _ as Windstrup was _ during reorganization.

Windstrup’s appellate brief contends that Smith & Nephew “believed that any position in the company could be performed by any employee and cross-training was routine so that no person could lose employment due to reorganization. No such opportunity was afforded to Mr. Windstrup. Since Mr. Windstrup was let go, the company has hired approximately 20 new employees in positions in which Mr. Windstrup was and is capable of performing.”

Is Smith & Nephew guilty of discriminating against Windstrup? An appeals court is deciding. Although Windstrup’s own behavior caused him to contract HIV, he and his wife do not deserve to be treated inhumanely, to lose everything.

More broadly, perhaps, too many American companies are growing increasingly hostile toward workers with HIV _ even toward those like Windstrup, who are loyal, competent and hardworking.

Still unemployed and despite financial hardship and fears, David Windstrup has at least one source of happiness: “I thank God every day that my wife did not become HIV positive because of my failures.”