Christopher R. O'Hara, a partner at Todd & Weld LLP, and Carole C. Cooke, an associate with the firm, obtained an $800,000 settlement for an employee following five days of trial and moments before closing arguments in a disability discrimination and Wage Act jury trial in Norfolk County Superior Court.
The plaintiff was hired by the defendant to help run a small, locally-owned business. The plaintiff had multiple myeloma, a chronic but treatable cancer of the plasma cells in the bone marrow, and at the time he was hired, the only treatment he required was monthly blood tests to monitor proteins in his blood. The plaintiff testified that after the first month or so of employment, the employer kept questioning him about his health. In his fourth month of employment, the plaintiff was diagnosed with a bone lesion requiring chemotherapy and radiation treatments. His doctors told him that the best thing was to continue working and leading as normal a life as possible. They told him that the type of drugs he would be given would not exhaust him, and that they would arrange for the infusions and the radiation treatments to take place in late afternoon so as not to interfere with his work schedule as much as possible. The treatment providers recommended that the plaintiff submit a formal request for intermittent leave.
When the plaintiff informed the defendant about his medical condition, the defendant offered him a "deal" whereby he would be laid off, work two days per week, collect unemployment and use COBRA to pay for his own health insurance. Understandably, the plaintiff declined this deal, and filed paperwork for an intermittent medical leave. Subsequently, the plaintiff arranged for a temporary leave form to be delivered to his employer. When the defendant received the form, the owner called the plaintiff and angered at the plaintiff's refusal to accept what the employer believed was a good deal, the employer terminated plaintiff's employment, and allegedly told the plaintiff: "Get yourself better and then come back."
The plaintiff, who had worked full-time his entire adult life, wanted to continue working full-time with temporary/intermittent leaves on two afternoons for two weeks in a row and then one week without treatment. This treatment cycle was to occur over a fifteen week period. [At the time, his wife was out of work and was on her husband's insurance plan.]
The plaintiff contended that the employer made incorrect assumptions about how the plaintiff's cancer treatments would unreasonably interfere with his ability to work. The plaintiff denied the shifting reason of performance advanced by the defendant at trial. On cross-examination, the employer admitted that the employee's medical condition and illness was "some part" of the reason he laid him off. He also acknowledged his earlier interrogatory answer in which he stated, under oath, that he had not raised any issues with the plaintiff's job performance orally or in writing prior to the termination.
During the 2 1/3 years the case was pending, the defendant made no settlement offer and refused to discuss settlement. Shortly after his cross-examination was concluded, however, at the end of the fourth day of trial, the defendant asked the plaintiff for a settlement demand. The next trial day, in a conference with the attorneys concerning the instructions he would give to the jury, the judge stated that for purposes of the anti-discrimination laws, there was no legal difference between a lay-off and a termination (i.e. both were adverse employment actions under the law). Moments before closing arguments and the jury charge and jury deliberations were to begin, the defendant agreed to settle the action for $800,000 and avoided a jury verdict that in the plaintiff's view likely would have included an award of punitive damages.
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