Attorneys win LRS handicap discrimination case against employer

Issue November 2003 By Krista Zanin

A western Massachusetts woman unjustly laid off from her job recently obtained a large judgment against her employer following an intense legal battle that began with a simple call for help to the MBA's Lawyer Referral Service.

Fired from her job as a senior merchandise manager following a disability, the woman, with her attorneys from The Nicolai Law Group of Springfield, sued the major national department store she worked for and obtained a judgment amounting to more than $563,000.

Represented by Marwan S. Zubi of The Nicolai Law Group, the woman filed two claims against the department store for state law claims of handicap discrimination and retaliatory harassment in federal court. Following a trial in 2002, the jury awarded the woman more than $563,000 - a judgment affirmed this summer by the First Circuit Court of Appeals.

"She initially contacted us because after she was laid off, (the department store) cut off her long-term disability payments," Zubi said. "Those were immediately restored through us and then we continued with a handicap discrimination case. She was a highly intelligent woman and an ideal client in that she was so smart she was a great help to us in pursuing the case."

The woman's troubles with her employer of more than 13 years began in 1997.

Diagnosed with severe mental disabilities that required medication and periodic schedule limitations, the woman, who was in her 30s, asked her employer to limit her schedule to six to eight hours a day, working no more than 40 hours per week, Zubi said.

For a year or so the company accommodated her requests. But that changed after a new manager was hired. Though he reluctantly agreed to her schedule limitations initially, things changed not soon after he started working for the department store.

The woman, who was periodically hospitalized, was ordered by her doctor in September 1997 to not work more than 40 hours a week because the stress of working as many as 50-60 hours a week aggravated her illness, Zubi said.

Following her doctor's advice, the woman drew up a new 40-hour-a-week schedule. Her boss rejected her request and then drafted a new schedule requiring her to work more than 40 hours a week with an understanding that she would also be required to work on days off. She complained to her boss and was told that if she didn't work the required hours, she wasn't a team player and her career with the company would effectively be over, Zubi said.

The following day the woman wrote a note to her boss, agreeing to work the hours he requested. She told him she loved her job and didn't want to lose it. The following months were incredibly busy as it was the holiday season and the woman was required to work from 50-60 hours per week. By Jan. 2 the woman's health had deteriorated rapidly and she was hospitalized. Her doctors told her then she could never work again, Zubi said.

"The doctor testified at trial her condition was aggravated by stress and working long hours … and it was such a drastic stress during the holiday season that it put her over the edge and caused her to become totally disabled," Zubi said.

Before the woman could resign from her position, the department store told her she was being laid off through a reduction in force. However, Zubi established at trial she wasn't laid off due to a RIF, but rather in retaliation for her seeking an accommodation of a handicap, Zubi said.

Another interesting legal challenge in the case came during the appeal, when the employer's attorneys argued the woman would not be entitled to back pay, Zubi said.

"(The department store) argued she couldn't get back pay because she was no longer able to work," Zubi said. "(They argued) she can't work anyway, how can she get back pay if she didn't mitigate her damages and try to go out and get another job? We argued that if someone becomes permanently disabled as a direct result of the employer's failure to accommodate the handicap, (the employee) should get back pay. The First Circuit on appeal agreed."