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Dirty Dealings 

A TUSD janitor fights for his job, and his life.

No matter how pummeled they have been, there is a certain swagger shown by those who have been wronged by government employers. It is a swagger, well before justice is served, that is most often borne of satisfaction in the dollars to come.

Frank Fiolek has been wronged by the Tucson Unified School District. He has the Arizona Center for Disability Law, the Equal Employment Opportunity Commission, his union and even favorable letters from the U.S. Department of Justice on his side. Still, Fiolek, a quiet and humble janitor who was forced from his job at John B. Wright Elementary School, has none of the swagger.

He'd like his job back. He'd like to carry his load. Not less. Not more.

Fiolek, in the fourth year in his battle with AIDS, has had to go to U.S. District Court in Tucson to try to get that job back. Rose Daly-Rooney, of the Arizona Center for Disability Law, and Laura Todd Johnson, lawyers working for Fiolek, filed suit against TUSD alleging discrimination, harassment and retaliation in violation of the Americans With Disabilities Act.

One of nine children raised by a mother who worked in the Tucson Medical Center kitchen, Fiolek graduated from Catalina High School in 1977. He signed up with TUSD in 1990 as a bus monitor, moved to the driver's seat, then became a janitor. He worked at Naylor Middle School and Catalina High, during the time that the TUSD board tried to close his alma matter, and in 1994 transferred to Wright.

Wright, in a clean working-class neighborhood at North Columbus Boulevard and East Linden Street, was what Fiolek says was a "good fit."

"It was close and I don't drive, so I was able to ride my bike to work. I got along with everybody and was very happy at Wright," Fiolek says. "That was very important. It doesn't always happen for people with their jobs."

Fiolek worked the day shift. Another janitor worked nights.

In his second year on the job at Wright, Fiolek was diagnosed with the AIDS virus, HIV. And after the summer cleaning was completed in 1996, Fiolek notified Antoinette Langford, installed as Wright principal that year by the TUSD board, that he would need to take some leave that fall to begin a new anti-viral medication therapy.

Later that year, Langford told Fiolek that his workload would be increased--that he would have more area to clean. This gave him more area and more work than the night custodian, a tilt that the TUSD board and bosses promised in a Memorandum of Understanding with blue-collar workers that it would not create.

Fiolek, according to the complaint filed in federal court, also reminded Langford that his HIV-positive condition would make it difficult for him to get the additional work done.

Day janitors have heightened responsibilities anyway, because school is in session and they are at "the beck and call" of administration, says Bruce Slabaugh, the veteran TUSD worker and American Federation of State, County & Municipal Employees steward who assisted Fiolek.

Wright started a full-day kindergarten that year, further increasing the work. Kindergartners, after all, are still learning how to handle lunch trays.

Langford responded coldly. She told Fiolek that he "looked healthy," according to court papers. She again refused to reconsider and balance the janitors' workloads in December 1996.

Langford, whose husband, Kelly, is the director of TUSD's African-American Studies, could not be reached for comment.

Fiolek, whose mother, stepfather and stepbrother work for TUSD, sought resolution through TUSD's internal committee for the Americans with Disabilities Act. His request for equitable distribution of work was rejected.

Fiolek didn't give up even though TUSD piled on his work. When he did need time off, TUSD, abandoning usual practice, didn't bring in a replacement. He tried to resolve the issues with a meeting with Langford and her boss, Assistant Superintendent Roger Pfeuffer. That session in March 1997 was unproductive, and Fiolek turned to the union, AFSCME Council 97, for help. He also filed a complaint of discrimination.

"This is not only a sad case but it's stupid," Slabaugh says. "This guy was not trying to gouge the district. He just wanted his job with a fair and equitable workload."

For Fiolek, it only got worse.

After a succession of job evaluations that rated his performance from satisfactory to outstanding, Fiolek, already facing changes in health, came to work to find notices and complaints in his box.

"I've been a hard worker all my life," Fiolek said in an interview. "I have never been on the bad side of a job. I can't explain the feeling, but it is an awful feeling. A lot of times, we associate ourselves with our jobs or how we do our jobs."

Rose Daly-Rooney and Laura Todd Johnson say in the suit they filed for Fiolek that after he participated in the Americans with Disabilities Act process, TUSD subjected him "to unfair disciplinary action, unwarranted and burdensome supervisory expectations, and denial of medical leave requests."

Fiolek filed a second complaint of discrimination in September 1997.

"As a result of (TUSD's) discriminatory and retaliatory action, Frank Fiolek's disability worsened, he lost weight, became more fatigued and got sick," the lawsuit says.

"That was a very tough year for me," Fiolek says. "Side effects of my medication were brutal."

Moreover, stress is strictly something to avoid with his illness. He had great worry, not just in the jeopardy to his $8-an-hour job, but in the potential loss of medical benefits that someone in Fiolek's condition needs. Fiolek is not a big man, but 120 pounds, which he dropped to, was far too thin.

By January 1998, Fiolek was feeling worse and was forced to take medical leave. He was diagnosed with AIDS soon after his leave began.

Last year, the Equal Employment Opportunity Commission issued two letters in Fiolek's case. The first found reasonable cause to believe that TUSD violated the Americans with Disabilities Act with discriminatory conditions of employment and subjecting him to harassment and intimidation because of his disability. A second letter from the EEOC found reasonable cause that TUSD retaliated against Fiolek after he filed the first complaint.

The U.S. Department of Justice also issued Fiolek a right to sue letter for both of his charges of discrimination.

"We see this as an important issue," says Daly-Rooney, whose budget forces rejection of numerous cases. "This is not your typical ADA case. It is not for a change or accommodation but to have him treated fairly."

Slabaugh, the AFSCME representative, says Fiolek's case should have been resolved early.

"I'm not a judge or a lawyer, but I am pretty able to determine between winners and losers, and the district is a loser on this one," Slabaugh says. "I'm confused why the district wages these wars of attrition. They wage these wars of attrition even with the cases they are going to lose."

Nonetheless, TUSD has enlisted Tibor Nagy of pricey Snell & Wilmer to fight Fiolek and to deny any wrongdoing. Lawyers inside TUSD's lumbering bureaucracy have painted Fiolek as one who is seeking $100,000, which they say is "unrealistic."

Though his suit seeks unspecified punitive damages in addition to back pay and his job, Fiolek is unlike most who have solid cases against government bosses. Some buy new cars before getting a settlement or judgment. Fiolek takes it one day a time and one struggle at a time. A trip to his lawyer's office, for instance, is a bus ride and a long walk in 105-degree heat. He takes joy in his son's achievements, including his recent graduation from a California community college. He takes time to praise Slabaugh and AFSCME, his lawyers, and the Southern Arizona AIDS Foundation.

"I don't know where I'd be if it weren't for them," he says. "It is a better day today."

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