Employee’s Request to “Sniff” New
Employees Denied by Employer
Termination of the employee
soon after her EEOC filing is enough to force a complete trial on ADA
retaliation issue
An employee with a history of seasonal allergies complained to her
employer of adverse reactions to a various co-workers’ perfumes and body
lotions. The employer permitted the
employee to move her seat multiple times, a supervisor agreed to contact the
employee only by telephone, the employee was permitted to leave work early
multiple times due to symptoms, and the employee was even given a two week paid
absence because of her complaints of irritation caused by a co-worker’s skin
lotion during a two week “buddy system” training program.
Because the employer denied the employee’s request to “sniff” new
employees, adopt a perfume-free policy, or give the claimant an enclosed
cubical with a special air filtration device, employee filed an EEOC complaint
for failure to accommodate her under the Americans With Disabilities Act
(“ADA”). According to the employer, the
employee was fired two months later for insubordination in a meeting where she
accused the employer of poisoning her through the air. The claimant alleged that the employer in
that meeting told her “I know you’re taking the legal route.” The claimant then filed a suit for, among
other things, ADA retaliation.
The trial court found that the claimant did not have a disability under
the ADA, and dismissed the case under the employer’s Motion for Judgment as a
Matter of Law. The Third Circuit Court
of Appeals reversed and remanded the matter back to the trial court for a
complete trial on the case. The Court
found, among other things, that the timing of the firing (10 days after the
alleged “legal route” comment and two months after the plaintiff’s filing of an
EEOC complaint) was enough for the retaliation issue to be tried before a
jury.
The Court implied that absent these two facts, that the matter would
have been dismissed without the necessity of a complete and costly trial. Although an employer has the right to
terminate an employee for cause, regardless of an ADA or other
discrimination/harassment claim, employers must keep in mind the fact that the
timing of any such firing as it relates to a discrimination/harassment
complaint/filing will often be enough to force the employer to go through a
complete and costly trial in order to prove that the termination was in fact
for cause.
Sally Shellenberger vs. Summit Bank Corp., 2003 WL 187109 (3rd Cir. 2003)
Good Samaritan Employer
Stung in WC
Employee’s WC benefits
automatically reinstated following layoff because employer allowed late
acceptance of light duty job offer
The employer in this case filed a Suspension Petition, as the claimant
had refused a light duty job made available by the employer. After receiving another six months of wc
wage benefits, the wc claimant decided
to accept the light duty job offer.
Although the employer had no legal responsibility to hold that light
duty job open, the employer allowed the claimant to return to work in that
light duty position.
The Judge then granted the Suspension Petition for the six months between
the date the job was offered and the date the claimant actually returned to
work. Under Pennsylvania law, the
claimant was allowed to keep the wage benefits he had received during that
period. The claimant was then laid off,
as light duty was no longer available.
Ordinarily, following a Judge’s Order Suspending a claimant’s benefits
for “bad faith” failure to return to a light duty position, a claimant would
have to prove an actual worsening in his physical condition in order to
reinstate his wc wage benefits. He
would have to prove that his work injury has deteriorated to such a point that
he could no longer perform the light duty job offered.
However, because the employer here kindly allowed this claimant to return
to light duty work six months after the light duty position was offered, the
employer in effect allowed the claimant to cure that “bad faith.” Accordingly, the claimant only had to show
essentially that he was laid off in
order to restart his total disability wc wage benefits.
Accordingly, employers should consider making light duty job offers open
for only a limited period of time, and not permit employees to later accept the
position when their wc benefits are threatened by a Suspension Petition.
Douglas v. WCAB (Stroh Companies) 2003 WL 347157 (Pa. Cmwlth. 2003)
ADA Damages Cap Fails
to Protect Employer
Employer is subject to
unlimited damages under companion State claim
An employee with multiple sclerosis sued her employer for discrimination
under the Americans With Disabilities Act (“ADA”) and the Pennsylvania Human
Relations Act (“PHRA”). The jury
entered a verdict for the employee, and awarded her $2,000,000 in compensatory
damages and $500,000 in punitive damages.
The trial court reduced the punitive damages to the $300,000 cap that
applies to punitive and compensatory damages under the ADA, and apportioned all
of the $2,000,000 in compensatory damages to the PHRA claim. The employer appealed, arguing that the
$300,000 cap should apply to all similar claims in a single lawsuit.
In the first decision from the 3rd Circuit on this issue, the
Appellate Court determined that the ADA damages cap does not affect the damages
that can be awarded and/or apportioned to a state claim, even if a state claim
is based on the same set of facts and allegations as the ADA claim. Importantly, the ADA contains an express
prohibition against limiting state remedies.
Further, the PHRA provides a cause of action which is almost identical
to the ADA. The court determined that
since the PHRA specifically omitted the damages cap that was contained in the
ADA, the PHRA intended to provide a remedy beyond that which could be awarded
under the ADA.
Gagliardo v. Connaught Laboratories, Inc. 2002 WL 31618506 (3rd Cir. 2002)
Commonwealth Court Eviscerates WC
Impairment Ratings (“IREs”)
IRE must be requested on WC
claims within 60 days of the expiration of 104 weeks of total disability wage
benefits, or employer will forever lose
right to IRE on the Claim
In an extremely strict reading of
Section 106(a.2)(a) of the Workers’ Compensation Act, the Commonwealth Court
has held that if an initial IRE is not requested within 60 days of the
expiration of 104 weeks of Claimant’s receipt of total disability benefits, the
Employer / Insurer is forever barred from securing an IRE. In a dissent from the majority opinion,
Judge Cohn reasoned that this interpretation “creates a hypertechnical
requirement not intended by the legislature.”
We have confirmed with the defense attorney in that case that the
employer has requested an appeal with the Pennsylvania Supreme Court. We are hopeful that the Supreme Court will
agree with Judge Cohn’s dissent, and overturn the Commonwealth Court’s Decision. In the meantime, we recommend that all
accepted workers’ compensation claims be diaried for the expiration of the 104
weeks of TTD. The claims handler or
defense counsel should request an IRE at the appropriate time on all cases
where an IRE might be appropriate.
Gardner v. WCAB (Genesis Health Ventures) 2003 WL 124234 (Pa. Commw. 2003)
Funded Employment Lives on in
Pennsylvania WC
WC Vocational Interviews Retain Validity
Prior case law had limited the duration of the reduction in a claimant’s
workers’ compensation wage benefits on a Modification Petition based on funded
employment. The Court in Myers[1]
held that if the funded position could guarantee funding for no more than 90
days, then the WC employer funding that position was entitled to only a 90-day
reduction in the WC claimant’s benefits, if the claimant failed to accept that
job within his physical limitations.
Here, the vocational expert testified that the position was to be funded
indefinitely. Accordingly, the Court
held that Myers did not apply, and the claimant’s wage benefits were
accordingly modified for his failure to accept the funded employment.
The claimant also argued that the modification was not valid because the
vocational expert had not been approved by the Bureau, as required in Caso
and Walker.[2] The Court responded that Caso and Walker
only hold that a Claimant cannot be compelled to attend an interview with an
unapproved expert. Here, Claimant
attended the vocational interview without objection. Accordingly, any challenge based on those cases had been
waived.
Henry v. WCAB (Keystone Foundry) 2002 WL 31973684 (Pa. Cmwlth. 2003)