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Is my situation a basis for health related/wrongful termination under the ADA?

Newark, CA |

I have received an email from another attorney stating I do have a case under the ADA & FEHA. I just need representation. Here is my situation: I was employed for a company that is contracted through Children’s Hospital (a pulmonary clinic) 8 months with my employer that has less than 50 employees. My son passed away Jan. 2013 and I was on leave until April 1st.. (returning to work April 1st). A few days prior to returning to work, I found out I have Stage 3C Invasive Breast Carcinoma, so I have been out and will remain out until I go through Chemotherapy/radiation and double breast reconstruction.
My employer gave me 12 weeks FMLA even though I was not employed a year. They gave me until April 23rd to come back to work (in which I do not understand where that date came from) in which my extensive mastectomy surgery was on April 16th and they told me in my letter they sent to me: "If you or your physician feel you can return to work before April 23rd on a part-time basis, we will do everything we can to reasonably accommodate your request, HOWEVER, YOU MUST BE WORKING FULL TIME AGAIN BY APRIL 23. (that makes no sense). They never gave me ample time to return to work. A week after surgery when my surgeon released me to return on May 20th. I then get a text page from my office manager stating my last day with the company was April 30th and then I receive a letter stating the same thing.
My issue: I had my own medical benefits plan I pay out of pocket monthly, so they are not losing any cost there, actually they are gaining off of me. They hired a "temp" to replace me until I return to work and that's what I was told from my office manager. The temp started in February and I found out that they hired her permanent in April, then they terminated my employment. They are paying her less hourly than I was getting paid I was also told from my office manager, so my employer is not losing anything or absorbing the loss of an employee for an extended period of time without disruption to the routines and needs of the office as they are claiming. I spoke to my office manager and stated that they should keep the temp on a long term temp until I return, because everyone wants me back. This is all my Director's decision. Is this right, legal and even fair? Do I have any rights? Can I sue based on the Americans with Disabilities Act? Isn't there a time frame on when they have to wait to hire someone on permanently? I was told it was 6 months they had to wait, but I don't know if that's correct. I'm really hoping I have some rights in this situation. I lose my son, I'm faced with breast cancer and they terminate my employment. Please advise...thank you so much.

P.S. I also wanted to inform you that this company will be merging and some employees will belong to Children’s Hospital (paid by Children’s Hospital) and the doctors will be UCSF paid and the company. I work for may not exist anymore, so I want to get moving on this.

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Attorney answers 2


Wow. What an unhappy whirlwind this must be for you. I'm really sorry to hear about all the things you've been going through.

If an attorney already analyzed your facts and believes your case is viable, why aren't you working with that attorney?

You have correctly noted that your employer was not required to allow you family leave because you had not worked there for a full year. And you noted the employer has less than 50 employees, so you must be aware that your employer was not required to comply with the FMLA for that reason, too. Your employer IS required to comply with the ADA and FEHA. You would have to show that you could perform the essential functions (main parts) of your job with or without a reasonable accommodation. A reasonable accommodation could be a leave of absence. However, showing that you can perform the essential functions may be tough due to your extensive absence.

your situation needs an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.

I urge you to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation in a confidential setting. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


Because you were not eligible for FMLA and the company is not bound by FMLA, the company's legal duty to you was to "reasonably accommodate" your medical condition. They may have a good defense since they did allow you to take leave for four months and they may argue that because of the merger, etc., that to further accommodate your condition was an undue hardship. I also don't understand that if you have been advised by an attorney that you "do have a case" why that attorney won't represent you. Attorneys don't turn down representation if there is a good case. It is best for you to call an employment law attorney to discuss the facts in more detail to see if we can get some type of settlement money, severance pay, etc. for you.



The attorney I called said he had too many cases and advised me to file a complaint with EEOC..but I'd like to have attorney representation if possible.

Kristine S Karila

Kristine S Karila


Just to let you know, when an attorney won't take a case because they have "too many cases", that is, many times, a polite way of saying they don't want your case because they don't think they can get money from it. To refer someone to the EEOC instead of taking it (we can always fit another one in) or referring it to another attorney, is a red flag that he/she did not think you have a good case. However, you should call another employment law attorney or two to get a second/third opinion. Many attorneys offer a free initial phone consultation.

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