Confidential Settlement

Eliz C A Johnson

Case Conclusion Date:May 5, 2000

Practice Area:Employment / Labor

Outcome:Settled in private mediation for $750,000

Description:Plaintiff contracted breast cancer, notified her employer that she would need some time off from work to seek treatment. Her employer told her not to worry about her job, but to concentrate on getting well. Plaintiff was advised by her doctor that she would need an 8 month course of chemotherapy and radiation treatments. She informed her employer’s human resources director who told her that her job would be protected. After the Plaintiff embarked upon her course of treatment and while she was in the middle of her chemotherapy, her employer fired her claiming that she had exhausted the company policy of 4 months of medical leave of absence. The company never designated the medical leave as being FMLA qualifying leave as required by FMLA regulations. In the state court, Plaintiff filed a complaint under the FEHA, alleging medical condition and physical disability discrimination. After Plaintiff discovered two years later that the employer failed to designate, Plaintiff attempted to amend the complaint to allege a violation of the CFRA. When that was denied, Plaintiff filed a complaint in federal court under the FMLA, which has no EEOC claims exhaustion requirement and a two or three year statute of limitations. Defendants succeeded in a summary judgment motion in state court, which was reversed on appeal. Plaintiff succeeded in Federal Court on the FMLA claim but was denied termination damages. Plaintiff appealed the damages issue to the 9th Circuit and won, but on the reconsideration, lost. The case was set for trial in the state court case and was settled one week before the trial was to start. DEFENDANTS CONTENTIONS: Defendants denied discrimination on the basis of cancer, asserted that the employer had given Plaintiff 4 months of medical leave and had thereby more than reasonably accommodated her medical condition; the employer further asserted that it was not required to hold a job open for indefinitely or even for 8 months; the employer further contended that it had no duty to accommodate the Plaintiff because at the time it fired her, she was too sick to work because of her chemotherapy treatments and there is no requirement under the FEHA to accommodate an individual unless the person is able to perform the essential functions of the job, with or without accommodation and this Plaintiff was too sick to do anything. PLAINTIFF’S CONTENTIONS: Plaintiff asserted that it is unlawful to promise an employee enough time to get treatment for breast cancer and then fire her in the middle of her chemotherapy treatment; she contended that the employer which had a one year personal leave of absence, could have accommodated her by granting the leave it had promised which was for a finite time. Plaintiff did not insist that her job be held open for the 8 month period, merely that she be considered for a comparable position for which she was qualified at the conclusion of her leave. MEDIATION: The case went through three mediations, the successful one occurring one week prior to trial with Linda Myers, in Malibu. The mediation resulted in a settlement of $750,000.00. Plaintiff also received about $35,000.00 in her FMLA federal case.