Employees now winning claims under ADA, FMLA 07-07-2004
- ByRita Risser, attorney at law

In the late 1990s, it was almost impossible for employees to win cases for discrimination under the ADA (Americans with Disabilities Act) or the FMLA (Family and Medical Leave Act.) That trend may now be reversing, as several courts of appeals have upheld jury verdicts in favor of disabled employees.

The most recent case, decided in May, 2004, was brought by a show host on the Home Shopping Network. Ms. Cleveland worked for 13 years on the network selling dolls, and was popular with viewers and vendors. In 1998, she was diagnosed with myasthenia gravis, a neuromuscular disease. She was off for two months, then returned with a doctor's restriction allowing her to continue as host but restricting her to four days a week of work. However, she was not returned to her hosting duties.

While she was waiting to return as host, she needed surgery to have her thymus gland removed and was out for more than 26 weeks. She again was cleared to return to hosting duties, but the network first put her in an off-air job, then in a hosting position on a less-popular sister network. About 18 months after returning to work she was fired, allegedly for making an infomercial.

Ms. Cleveland sued for discrimination under the ADA and won. The jury found that the reason given for her termination was a pretext. She was awarded about half a million dollars, and the verdict was upheld on appeal.
Cleveland v. Home Shopping Network (11th Cir 05/11/2004)

Another employee won a case under a unique theory involving the FMLA. The employee suffered a nervous breakdown. When he applied for FMLA leave, he signed forms that, unbeknownst to him, terminated his employment if he did not return to work immediately after expiration of the leave. When his absence from work exceeded FMLA leave time, he was not informed he was terminated. When he attempted to return to work more than a year later, he was told he had been terminated. He sued, and won, claiming the company had intentionally misrepresented the terms of his leave.
Betterman v. Fleming Companies (Wisconsin Ct App 02/17/2004)

Another unique twist was found in an ADA case brought by a special education teacher. She claimed that the disabled students under her care were being discriminated against. She complained to her supervisor and was ignored; she wrote a letter to her supervisor's manager and was told not to write letters and to resolve the situation with her supervisor; she wrote a letter to the manager's director, and was fired. The Court of Appeals found that she had been fired in retaliation for whistle-blowing under the ADA, and upheld a verdict of over $1 million including attorneys' fees.
Settlegoode v. Portland Public Schools (9th Cir 04/05/2004)

What this means to you: The common thread running through these cases is that the employees were not treated fairly by their employers, because they did not follow reasonable procedures for termination.

In the Home Shopping Network case, it may have been a violation of policy for the employee to make an infomercial, but because she had not been returned to her hosting duties, the termination was tainted. Similarly, the special education teacher received bad performance reviews, but only after she wrote her letters. The case of the employee with the nervous breakdown could have been avoided completely if the employer simply had told him what he was signing.

The moral: Be fair, and stay out of court!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.