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 Employee Fired For Taking Medical Leave Gets Jury Verdict Reinstated

When does too much time off for an illness justify a termination because of poor attendance? Not every time according to a case decided this past week from the Fifth Circuit Court of Appeals. Here's what happened.

Facts Of The Case

Edward Carmona worked for Southwest Airlines as a flight attendant. He was plagued with psoriasis since he was a teen. As an adult, Carmona developed psoriatic arthritis which causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of his skin.

During flare-ups, Carmona is in great pain and has difficulty walking and moving around. The flare ups occur three or four times every month and each flare-up lasts for three or four days.

In order to get time off as needed for his condition, Carmona filed for intermittent leave under the Family and Medical Leave Act. He was granted FMLA leave between 1998 and 2005, until Southwest determined that he had not worked enough hours to be eligible for renewal.

After Carmona’s FMLA leave expired, he was no longer able to excuse absences caused by his psoriatic arthritis. What followed was a round of progressive discipline which culminated in termination because of an accumulation of points relating to unexcused absences.

The Lawsuit

Carmona sued Southwest claiming that he was terminated because of his disability in violation of  the Americans with Disabilities Act. (ADA)*.

In order to prove an ADA claim, an individual must prove:

• that he was an individual with a disability within the meaning of the ADA
  
• that he was a qualified individual for his job, despite his disability,
  
• and that he was discharged because of his disability

In order to establish a disability, Carmona had to establish that he had:

• a physical or mental impairment that substantially limited one or more major life activities
• a record of such an impairment or
• that he was regarded as having such a impairment.

After a jury trial which Carmona won,  the judge granted judgment against Carmon as a matter of law on the grounds that he did not present sufficient evidence of a disability.  Specifically, the judge found Carmona's intermittent limitations didn’t prove a substantially limiting impairment. In other words, the judge ruled that Carmona was not disabled as a matter of law and took away the verdict.

The Fifth Circuit Court of Appeals disagreed and reversed in it's opinion issued this week. You can read the decision here.

In sum, it held that the verdict should stand because there was sufficient evidence for a reasonable jury to conclude that:

• Carmona had an impairment that substantially limited his major life activity of walking
  

• he was a qualified individual for his job
  

• he was terminated because of his disability

Take Away

This is a really good decision for those who have conditions which cause intermittent disabling flare-ups and need to take time off of work because of it. It will particularly benefit those employees who work for employers not covered by the FMLA (companies with less than 50 employees).

The case also has a helpful discussion on Southwest's core argument --- that Carmona was not qualified for the job because of his poor attendance.

It’s also  good decision for those with cases pending before the ADA amendments Act of 2008. The Court did not apply the amendments retroactively, yet still found for the plaintiff under the narrower pre-amendments law.

The Court also wrote about reinstatement as a remedy -- another topic we don't see very often in ADA opinions.

In sum,  this case is a good result for employees and instructive to employers on the interplay of attendance policies and the ADA.

( *Carmona also had a Title VII claim; the jury found against him on that claim )

Image: blog.cleveland.com

About Ellen

Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen's  a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman's issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net .

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Admission Of EEOC "No Probable Cause" Determination Is Reversible Error

I ran across this case recently and I think it’s definitely worth talking about.  It deals with a real problem in discrimination cases that has been around for as long as I can remember and it affects just about everyone who files an EEOC charge.

The case, Byrd v. BT Foods, Inc., addresses the controversial issue regarding the admissibility of  EEOC findings at trial and it's a good result for employees.

What’s The Problem?

When an individual files an EEOC charge, the EEOC  conducts an investigation. At its conclusion, the EEOC issues a determination letter stating one of two things:

1. there was probable cause to believe that discrimination, retaliation, etc. occurred or
   
2. there was no probable cause to believe that a violation of the civil rights law occurred

After the determination, the EEOC issues a Notice of Dismissal and Notice of Right to Sue which gives the individual the right to go to court.

Here’s the potential problem for the employee who did not prevail at the EEOC (or its state counterpart).  At trial, the employer always tries to introduce the EEOC dismissal and no probable cause determination.

In effect,  the employer wants to argue to the jury, “the government investigated this case, didn’t find discrimination, and you shouldn’t either.”  It doesn’t take Clarence Darrow to figure out that this argument can be quite damaging to the plaintiff’s case at trial.

 What Happened In The Case

Cemeshia Byrd worked at Wendy’s in Coral Springs, Florida. Byrd filed a lawsuit against BT Foods (doing business as Wendy’s Coral Springs) claiming that she was discriminated against when she was terminated because she had Human Immunodeficiency Virus (HIV). 

Discrimination because of AIDS is illegal in the U.S. under the Americans with Disabilities Act. It's also illegal under many state civil rights laws, including the Florida Omnibus Aids Act and the Florida Civil Rights Act.

Before proceeding to court, Byrd filed a charge of discrimination with the Broward County Civil Rights Division, an agency which conducts investigations for the Equal Opportunity Commission.

After receiving a no probable cause letter of determination, Byrd filed a lawsuit in Broward County Circuit Court claiming discrimination and intentional infliction of emotional distress.

Before trial, Byrd filed a Motion in Limine -- which is a request for an order to exclude the admission of particular evidence at trial. Generally the gist of the augment on a Motion in Limine is that:

• the evidence is irrelevant, highly prejudicial, or hearsay and
  

• the jury should not be able to hear or see the evidence nor should there be any reference to it

In this case, Byrd asked for an exclusion of EEOC documents including the Notice of Determination and Notice of Dismissal of her EEOC charge.

She argued that the EEOC “NO PROBABLE CAUSE STATEMENT" written in capital letters in the Notice of Determination were highly misleading, unduly prejudicial, and too conclusory to provide any meaningful probative value . She also argued that the jury would be likely to give the dismissal and “no probable cause determination” more weight than is appropriate.

The judge ruled against Byrd and in favor of BT Foods on the Motion in Limine.  During the trial, according to Byrd, BT Foods made the reasonable cause determination the centerpiece of its defense.

Byrd lost her jury trial and filed an appeal. In it she claimed that the court’s admission of the EEOC findings constituted reversible error which entitled her to a new trial.

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Direct Evidence Of Age Discrimination Gets Plaintiff Jury Trial: Court Wrongfully Applied Mixed Motive Standard To Bounce The Case

It’s hard to believe that this age discrimination victim got thrown out of court and had to go to the Eleventh Circuit Court of Appeals for a reversal but here’s what happened in the recently decided case of  Mora v. Jackson Memorial Hospital.

Facts Of The Case

Sixty-two year old Josephine Mora worked for Jackson Memorial Hospital ("Hospital') as a fundraiser. She initially worked for someone named Chea who recommended to the Hospital’s chief executive, Rodriguez, that she be fired. The reasons for the recommendation are not set out in the opinion. 

Rodriguez first agreed, but then decided to give Mora a different position in his own office “where he could observe her more closely.” Mora worked with Rodriguez for a month. Rodriguez claimed during that time Mora was responsible for several errors and displayed a lack of professionalism.

At the end of the month, Rodriguez fired Mora. When he did so, according to Mora, Rodriguez called her into his office and said:

I need someone younger I can pay less … I need Elena [Quevedo, a 25 year old employee]

In addition, one employee heard Rodriguez tell Mora:

You are very old and inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control.

Another employee heard Rodriguez say, "she's too old to be working here anyway" in reference to Mora.

In the course of  Mora's lawsuit filed under the Age Discrimination in Employment Act, ("ADEA") Rodriguez denied making these discriminatory remarks. In addition, the Hospital argued that even if it did discriminate against Mora, she would have been fired anyway because of poor performance.

The district court agreed with the defendant, concluded that the Hospital had met its burden under the “same decision” affirmative defense, and granted judgment in favor of the Hospital. Mora appealed.

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Walmart's Discrimination Against Women In Warehouse Positions Results In 11.7 Million Dollar Settlement

Walmart will pay $11.7 million dollars in lost wages and compensatory damages -- and will provide other relief including jobs -- to settle a sex discrimination class action lawsuit filed by the Equal Employment Opportunity Commission (EEOC).

According the the EEOC, Walmart's London, Kentucky distribution center hired only men into warehouse positions and excluded women who were equally and better qualified between 1998 and 2005 in violation of Title VII of the Civil Rights Laws of 1964.

The EEOC alleged that Walmart regularly used gender stereotypes in filling entry level order filler positions which hiring officials at Walmart contended were not suitable for women.

The consent decree settling the case requires Walmart to provide order filler jobs, as they become available, to eligible and interested female class members. A settlement administrator will administer the proceeds of the settlement to all eligible class members.

Walmart also agreed not to discriminate against females in hiring for order filler positions and not to retaliate against applicants who exercise their rights, complain about discrimination, or assist in an investigation of a discrimination related proceeding.

Walmart had sales of $401 billion in 2009 and employs more than 2.1 million individuals worldwide.

Walmart is notorious for illegal employment practices. This case is just another example. Great job by the EEOC in holding Walmart's feet to the fire.

images: willpen.files.wordpress.com/

Recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman's issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

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